and Submitted August 5, 2019 Anchorage, Alaska
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
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.
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.
Rawls Brooking and Jessica M. Alloway, Assistant Attorneys
General, Alaska Department of Law, Anchorage, Alaska, for
Intervenor-Defendant-Appellee State of Alaska Department of
Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy
Smith, Circuit Judges.
Review Act / Jurisdiction
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.
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
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.
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.
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.
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.
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.
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.
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). 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").
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
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 . . .
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 ...