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Center for Biological Diversity v. Bernhardt

United States Court of Appeals, Ninth Circuit

December 30, 2019

Center for Biological Diversity, Plaintiff-Appellant,
v.
David Bernhardt, in his official capacity as Secretary of the United States Department of the Interior; U.S. Department of the Interior, Defendants-Appellees, Pacific Legal Foundation; Alaska Outdoor Council; Big Game Forever; Kurt Whitehead; Joe Letarte; Safari Club International; National Rifle Association of America, Inc.; State of Alaska Department of Law, Intervenor-Defendants-Appellees.

          Argued and Submitted August 5, 2019 Anchorage, Alaska

          Appeal from the United States District Court D.C. No. 3:17-cv-00091-SLG for the District of Alaska Sharon L. Gleason, District Judge, Presiding

          Howard M. Crystal (argued), Center for Biological Diversity, Washington, D.C.; Collette Adkins, Center for Biological Diversity, Circle Pines, Minnesota; for Plaintiff-Appellant.

          Benjamin Mandel Shultz (argued), Attorney; Michael S. Raab and Tara S. Morrissey, Appellate Staff; Bryan Schroder, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

          David Deerson (argued), James S. Burling, Oliver J. Dunford, and Jeffrey W. McCoy, Pacific Legal Foundation, Sacramento, California; Jonathan Wood and Todd F. Gaziano, Pacific Legal Foundation, Arlington, Virginia; Zacharia Olson, Yturri Rose LLP, Ontario, Oregon; for Intervenor-Defendants-Appellees Pacific Legal Foundation, Alaska Outdoor Council, Big Game Forever, Kurt Whitehead, and Joe Letarte.

          Michael T. Jean, National Rifle Association of America, Fairfax, Virginia; Anna M. Seidman and Jeremy E. Clare, Safari Club International, Washington, D.C.; for Intervenor-Defendants-Appellees Safari Club International and National Rifle Association of America, Inc.

          Cheryl Rawls Brooking and Jessica M. Alloway, Assistant Attorneys General, Alaska Department of Law, Anchorage, Alaska, for Intervenor-Defendant-Appellee State of Alaska Department of Law.

          Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.

         SUMMARY[*]

         Congressional Review Act / Jurisdiction

         The panel affirmed in part, and dismissed in part, the district court's dismissal of the Center for Biological Diversity ("CBD")'s complaint that sought to compel the Department of the Interior to reinstate the Refuges Rule that prevented Alaska from applying certain state hunting regulations on federal wildlife refuges.

         The Congressional Review Act ("CRA") was designed to give Congress an expedited procedure to review and disapprove federal regulations. Before a rule can take effect, the promulgating Federal agency submits a report. After receiving the agency's report, Congress has a specified time period to enact a joint resolution that disapproves the regulation (the "Disapproval Provision"). Once an agency's rule has been disapproved by joint resolution, the agency may not reissue the same, or similar, rule unless the new rule is specifically authorized by a law enacted after the joint resolution disapproving the original rule (the "Reenactment Provision").

         The U.S. Fish & Wildlife Services promulgated the Refuges Rule prohibiting Alaska's predator-control methods on national wildlife refuges, along with certain methods of hunting bears and wolves. Congress passed, and the President signed, a Joint Resolution disapproving the Refuges Rule.

         Generally, the panel held that it lacked jurisdiction over CBD's statutory claims and concluded that CBD's constitutional claims did not allege a plausible basis for relief.

         The panel held that because CBD failed to allege an injury in fact that was more than speculative, it did not have Article III standing to challenge the Reenactment Provision. The panel therefore dismissed CBD's argument that the Reenactment Clause violated the nondelegation doctrine.

         The panel turned next to CBD's claim that the Disapproval Provision and Congress' Joint Resolution violated the Take Care Clause of the U.S. Constitution. Concerning the CRA's jurisdiction-stripping-provision, which on its face barred judicial review of all challenges to actions under the CRA, including constitutional challenges, the panel presumed that Congress did not intend to bar constitutional review because the jurisdiction-stripping-provision did not include any explicit language barring judicial review of constitutional claims. CBD argued that the CRA and Joint Resolution violated separation-of-power principles because they interfered with the Executive Branch's duty under the Take Care Clause of the Constitution by preventing the Department of the Interior from implementing its constitutional duty to faithfully execute the laws by properly managing the federal wildlife refuge system. The panel rejected the argument because Congress properly enacted the Joint Resolution, thereby validly amending Interior's authority to administer national wildlife refuges in Alaska, and Congress, accordingly, did not prevent the President from exercising his constitutional duty to faithfully execute the laws. The panel concluded that because the Joint Resolution did not violate the Take Care Clause, CBD's complaint failed to state a claim that was plausible on its face.

         Finally, the panel considered CBD's statutory claim that the Refuges Rule could not be submitted in accordance with CRA's provision at 5 U.S.C. § 801(d)(1), which specifies certain deadlines. Joining other circuits, the panel held that federal courts do not have jurisdiction over statutory claims that arise under the CRA. The panel held that here where CBD challenged Congress's enactment of the Joint Resolution, and where Congress enacted a joint resolution of disapproval that was an action under the CRA, there was no jurisdiction to consider the claim.

          OPINION

          IKUTA, CIRCUIT JUDGE.

         Enacted as part of the Contract with America Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847, the Congressional Review Act (CRA) was designed to give Congress an expedited procedure to review and disapprove federal regulations. 5 U.S.C. §§ 801-808. In 2017, Congress used this procedure to order the Department of the Interior (Interior) to rescind a regulation that prevented Alaska from applying certain state hunting regulations on federal wildlife refuges. The Center for Biological Diversity (CBD) brought this legal action to compel Interior to reinstate the rule. Because we lack jurisdiction over CBD's statutory claims and conclude that CBD's constitutional claims do not allege a plausible basis for relief, we affirm the district court's dismissal of CBD's complaint.

         I

         The CRA assists Congress in discharging its responsibilities for overseeing federal regulatory agencies. It provides that "[b]efore a rule can take effect, the Federal agency promulgating such rule shall submit" a report that includes "a concise general statement relating to the rule" and a "proposed effective date." § 801(a)(1)(A).[1] After receiving the agency's report, Congress has a specified time period to enact a joint resolution that disapproves the regulation and states that "such rule shall have no force or effect." § 802(a) (the "Disapproval Provision"). Typically, Congress has 60 days to exercise the Disapproval Provision. Id. But if an agency submits a rule to Congress during the final 60 days of a congressional session, or submits the rule when Congress is not in session, the 60-day clock does not start to run until the 15th day of the subsequent congressional session. § 801(d)(1)-(2)(A) (the "Carryover Provision").[2]

         If the House and Senate pass a joint resolution of disapproval, and the President signs it into law, the agency's rule "shall not take effect (or continue)." § 801(b)(1); see also U.S. Const. art I, § 7, cl. 3. Once an agency's rule has been disapproved by joint resolution, the agency may not reissue the same rule "in substantially the same form," and may not issue "a new rule that is substantially the same" as the disapproved rule "unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule." 5 U.S.C. § 801(b)(2) (the "Reenactment Provision").

         The CRA streamlines Congress's typical procedure for enacting legislation. For instance, the CRA limits debate on a joint resolution "to not more than 10 hours," § 802(d)(2), and allows the Senate to take a joint resolution away from a Senate committee after 20 days and place it on the calendar for consideration by the full Senate on the vote of 30 Senators, § 802(c). The CRA declares that this accelerated procedure is "an exercise of the rulemaking power of the Senate and House of Representatives, respectively," and invokes the constitutional authority of Congress to amend its rules of procedure. § 802(g); see U.S. Const. art I, § 5, cl. 2 ("Each House may determine the Rules of its Proceedings . . . .").

         As part of its effort to ensure an expedited process, the CRA provides that "[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review." 5 U.S.C. § 805 ...


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