Ctr. for Biological Diversity v. Bernhardt

• Decision Date: 30 December 2019
• Docket Number: No. 18-35629,18-35629
• Citation: 946 F.3d 553
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

946 F.3d 553

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.

No. 18-35629

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2019, Anchorage, Alaska

Filed December 30, 2019

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.

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 (the "Jurisdiction-Stripping Provision").

II

This case stems from conflict over the management of wildlife in national wildlife refuges in Alaska. Congress has authority under the Property Clause of the Constitution to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const. art. IV, § 3, cl. 2. Federal statutes applicable to the national wildlife refuges at issue in this case include the National Wildlife Refuge System Administration Act of 1966, Pub. L. No. 89-669, 80 Stat. 926 (codified as amended at 16 U.S.C. § 668dd – 668ee (1998) ), the National Wildlife Refuge System Improvement Act of 1997, Pub. L. No. 105-57, 111 Stat. 1252 (codified as amended at 16 U.S.C. § 668dd – 668ee (1998) ), and the Alaska National Interest Lands Conservation Act (ANILCA), Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified at 16 U.S.C. §§ 3101 – 3233 ). Each of these statutes authorizes Interior to manage the federal wildlife refuges for conservation and public use.

States also possess broad powers over fish and wildlife within their borders. See, e.g. , 16 U.S.C. § 668dd(m). Alaska’s laws for managing wildlife are applicable in the national wildlife refuges in the state unless preempted by federal law. See Kleppe v. New Mexico , 426 U.S. 529, 542–43, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) ; see also 50 C.F.R. § 32.2(d). In 1994, the Alaska legislature authorized the Board of Game (Board) "to provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals." Alaska Stat. § 16.05.255(e) (2014). To that end, the Board permitted hunters to specifically target big game predators, like black bears, brown bears, and wolves. See Alaska Admin. Code tit. 5, §§ 92.110, 92.115, 92.124 (2019). Over the years, the Board has expanded its intensive management program and permitted hunters to engage in a range of predator-control activities.

Concerned that Alaska’s intensive management program was "in direct conflict" with the federal mandate for administering national wildlife refuges, the Fish & Wildlife Service (FWS) promulgated an expansive new rule that substantially deviated from the state’s regulations. See Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska, 81 Fed. Reg. 52248-01, 52252 (Aug. 5, 2016) (the "Refuges Rule") (codified at 50 C.F.R. § 36.32(b), repealed by 82 Fed. Reg. 52009-01(Nov. 9, 2017) ). The Refuges Rule prohibited Alaska’s predator-control methods on national wildlife refuges, along with certain methods of hunting bears and wolves. 81 Fed. Reg. at 52252. The Rule effectively prevented the Board from implementing Alaska’s intensive management law on federal land. See id. ; Alaska Stat. § 16.05.255 ; Alaska Admin. Code tit. 5, §§ 92.106 – 92.127.

On October 5, 2016, consistent with the CRA, Interior submitted the Refuges Rule to Congress and the Comptroller General.³ At the time, less than 60 days remained in the 114th Congress.⁴ Therefore, the CRA’s Carryover Provision applied and the 60-day clock would not start running until the 15th day of the subsequent congressional session. § 801(d)(1)–(2)(A). In February 2017, within the time period established by the Carryover Provision, a joint resolution disapproving the Refuges Rule was introduced in the House of Representatives ("Joint Resolution"). H.R.J. Res. 69, 115th Cong. (2017); see also 5 U.S.C. § 801(d). The House and Senate passed the Joint Resolution, and the President signed the Joint Resolution into law on April 3, 2017. Pub. L. No. 115-20, 131 Stat. 86 (2017).

The Joint Resolution states:

Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the final rule of the Department of the Interior relating to "Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska".

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled , That Congress disapproves the rule submitted by the Department of the Interior relating to "Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska" (81 Fed. Reg. 52247 (August 5, 2016)), and such rule shall have no force or effect.

Id.

Following the enactment of the Joint Resolution, Interior promulgated an administrative rule rescinding the Refuges Rule and reverting "to the text of the regulations in effect immediately prior to the" Refuges Rule. Effectuating Congressional Nullification of the...