Alliance for the Wild Rockies; Friends of the Clearwater; Wildearth Guardians v.  Ken Salazar

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 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 
3065

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 IDAHO FARM BUREAU FEDERATION;
MONTANA FARM BUREAU No. 11-35661
FEDERATION; MOUNTAIN STATES D.C. Nos.
LEGAL FOUNDATION; NATIONAL 9:11-cv-00070-
RIFLE ASSOCIATION OF AMERICA; DWM
SAFARI CLUB INTERNATIONAL; 9:11-cv-00071-
WILDLIFE CONSERVATION GROUPS, DWM
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, 
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
and No. 11-35670
D.C. Nos. IDAHO FARM BUREAU FEDERATION;
9:11-cv-00070- MONTANA FARM BUREAU
DWM FEDERATION; MOUNTAIN STATES  9:11-cv-00071- LEGAL FOUNDATION; NATIONAL
DWM RIFLE ASSOCIATION OF AMERICA;
SAFARI CLUB INTERNATIONAL; OPINION
WILDLIFE CONSERVATION GROUPS,
Intervenors. 
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
November 8, 2011—Pasadena, California
Filed March 14, 2012
Before: Mary M. Schroeder, Stephen Reinhardt, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Schroeder
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COUNSEL
James J. Tutchton, Centennial, Colorado, and Amy Rae
Atwood, Portland Oregon, for the plaintiffs-appellants Alli-
ance for the Wild Rockies, et al.
David C. Shilton, Department of Justice, Washington, D.C.,
for the the defendants-appellees Ken Salazar, Secretary of the
Interior, et al.
Steven J. Lechner, Lakewood, Colorado, for intervenors-
appellees Safari Club International, et al.
OPINION
SCHROEDER, Circuit Judge:
Plaintiff environmental groups seek to enjoin the imple-
mentation of a statute, Section 1713 of the 2011 Appropria-
tions Act, that orders the Secretary of the Interior to remove
a portion of a distinct population of gray wolves from the pro-
tections of the Endangered Species Act (“ESA”) without
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regard to any statute or regulation that might otherwise apply.
Section 1713 effectively undid an earlier district court deci-
sion that found that such an action by the government, a “par-
tial 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 Audu-
bon Society, 503 U.S. 429 (1992), we affirm.
I. BACKGROUND
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, 354 F. Supp. 2d 1156 (D. Or. 2005); Defenders of
Wildlife v. Hall, 565 F. Supp. 2d 1160 (D. Mont. 2008). In
2009, the agency issued what is known as the “2009 Rule,”
50 C.F.R. Part 17, 74 Fed. Reg. 15,123. It designated a dis-
tinct population of gray wolves in the northern Rocky Moun-
tains and removed ESA protection for all except those in
Wyoming. The district court struck down the 2009 Rule as
violating the ESA because the statute does not permit partial
delisting of a distinct population segment. Defenders of Wild-
life v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010). The
federal government, the states of Idaho and Montana, and var-
ious intervenors appealed, and that appeal, consolidated at
No. 10-35885, has been stayed pending resolution of this
case.
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
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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:
Before the end of the 60-day period beginning on the
date of enactment of this Act, the Secretary of the
Interior shall reissue the final rule published on April
2, 2009 (74 Fed. Reg. 15123 et seq.) without regard
to any other provision of statute or regulation that
applies to issuance of such rule. Such reissuance
(including this section) shall not be subject to judi-
cial review and shall not abrogate or otherwise have
any effect on the order and judgment issued by the
United States District Court for the District of Wyo-
ming in Case Numbers 09–CV–118J and 09–CV–
138J on November 18, 2010 [involving Wyoming’s
management plan for gray wolves].
Id.
On May 5, 2011, FWS complied with Section 1713 by reis-
suing the 2009 Rule. 50 C.F.R. Part 17, 76 Fed. Reg. 25,590.
That same day, plaintiffs filed this suit challenging the consti-
tutionality of Section 1713 under the separation of powers
doctrine, and relying on United States v. Klein, 80 U.S. 128
(1871). On August 3, 2011, the district court granted sum-
mary judgment to the government defendants. Alliance for the
Wild Rockies, et al. v. Salazar, 800 F. Supp. 2d 1123 (D.
Mont. 2011). We review the legal ruling de novo and affirm.
II. ANALYSIS
The cornerstones of plaintiffs’ separation of powers chal-
lenge were laid in the mid-19th century when the Supreme
Court decided United States v. Klein, 80 U.S. 128 (1871) and
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Pennsylvania v. The Wheeling and Belmont Bridge Co., 59
U.S. 421 (1855).
In Klein, the Supreme Court struck down an act of Con-
gress that dictated the result in pending litigation. The plain-
tiff 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 disloy-
alty. 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 fur-
ther directed the Supreme Court to dismiss any case, for want
of jurisdiction, if the claimant had prevailed upon proof of
loyalty by Presidential pardon.
In striking down the statute, the Supreme Court in Klein
explained that the effect of the new law was to deny jurisdic-
tion 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.
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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 legisla-
tion, however, made the bridge a post-road for passage of the
United States mail and forbade users of the river from inter-
fering 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. Rob-
ertson, 914 F.2d 1311 (9th Cir. 1990), rev’d, Robertson v.
Seattle Audubon Society, 503 U.S. 429 (1992) to strike down
a statute enacted to affect pending environmental litigation
aimed at restricting logging and protecting the endangered
spotted owl. While the litigation was still ongoing, and after
the environmental groups had won a preliminary injunction
on the ground that there had been inadequate study of the log-
ging’s environmental effects, Congress intervened and passed
section 318 of the Department of the Interior and Related
Agencies Appropriations Act for Fiscal Year 1990, Pub. L.
No. 101-121, 103 Stat. 701, 745-50 (1989) (“section 318”).
Section 318 allowed logging in parts of the disputed spotted
owl habitat. Section 318(b)(6)(A) specified how the environ-
mental concerns in the pending litigation were to be satisfied
and barred judicial review. It provided:
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Without passing on the legal and factual adequacy
of the Final Supplement to the Environmental
Impact Statement for an Amendment to the Pacific
Northwest Regional Guide-Spotted Owl Guidelines
and the accompanying Record of Decision issued by
the Forest Service on December 12, 1988 or the
December 22, 1987 agreement between the Bureau
of Land Management and the Oregon Department of
Fish and Wildlife for management of the spotted
owl, the Congress hereby determines and directs that
management of areas according to subsections (b)(3)
and (b)(5) of this section on the thirteen national for-
ests in Oregon and Washington and Bureau of Land
Management lands in western Oregon known to con-
tain northern spotted owls is adequate consideration
for the purpose of meeting the statutory requirements
that are the basis for the consolidated cases cap-
tioned Seattle Audubon Society et al., v. F. Dale
Robertson, Civil No. 89-160 and Washington Con-
tract Loggers Assoc. et al., v. F. Dale Robertson,
Civil No. 89-99 (order granting preliminary injunc-
tion) and the case Portland Audubon Society et al.,
v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The
guidelines adopted by subsections (b)(3) and (b)(5)
of this section shall not be subject to judicial review
by any court of the United States.
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, 503 U.S. 429. The Court held that section 318
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amended the law because subsections (b)(3) and (b)(5)
replaced the legal standards underlying the old growth forest
litigation. Id. at 437. The Court held that the rule of Tennessee
Valley Authority, requiring repeal of a law to be explicit, did
not apply because section 318 did not repeal, but “amended”
or changed the environmental laws applicable to a specific
case and therefore did not violate the constitutional preroga-
tive of the courts. Id. at 440 (citing TVA v. Hill, 437 U.S. 153,
190 (1978)).
[1] 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, Con-
gress replaced the environmental laws applicable to the spot-
ted owl litigation with new provisions and effectively directed
the agency to comply with the new provisions. Here, Con-
gress 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 Con-
gress so directs an agency action, with similar language, Con-
gress has amended the law. Consejo de Desarollo Economico,
Mexicali v. United States, 482 F.3d 1157, 1169 (9th Cir.
2007) (“[W]hen Congress has directed immediate implemen-
tation ‘notwithstanding any other provision of law,’ we have
construed the legislation to exempt the affected project from
the reach of environmental statutes which would delay imple-
mentation.”). In Consejo, Congress directed the immediate
commencement of a project to line a canal “notwithstanding
any other provision of law.” We relied upon our earlier deci-
sion in Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989)
which upheld a statute that exempted a project from environ-
mental laws. We said in Consejo that, like the legislation
underpinning Stop H-3, “the 2006 Act does not direct us to
make any findings or to make any particular application of
law to facts. Rather, the legislation changes the substantive
law governing pre-conditions to commencement of the Lining
Project. As such, it does not violate the constitutional separa-
tion of powers.” Id. at 1170; see also Apache Survival Coal.
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v. United States, 21 F.3d 895, 902 (9th Cir. 1994) (“[L]ike in
Robertson, the statute substituted preexisting legal standards
that governed a particular project, in this case ESA and
NEPA, with the new standards . . . .”). We must reach the
same result here.
[2] Appellants’ arguments that Section 1713 is a repeal
rather than an amendment must fail for a similar reason. Con-
gress did not repeal any part of the ESA. Rather, Congress
effectively provided that no statute, and this must include the
ESA, would apply to the 2009 rule. Congress thus amended
the law applicable to the agency action.
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.
[3] 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, 269 F.3d 1092, 1095 (D.C. Cir. 2001). In
National Coalition, the court held that the preclusion of
review tracked language elsewhere in the statute that the proj-
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ect at issue “be ‘constructed expeditiously’ ” and, therefore,
“demonstrate[d] Congress’s clear intent to go ahead” with the
project “regardless of the . . . relation to pre-existing general
legislation.” Id. We agree with the D.C. Circuit that preclu-
sion of judicial review indicates Congressional intent to
change the law applicable to the project.
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 constitutional-
ity of Section 1713. See Webster v. Doe, 486 U.S. 592, 603
(1988); Johnson v. Robison, 415 U.S. 361, 366 (1974). The
government has disavowed this interpretation before the dis-
trict court and this court. We reject any such interpretation.
[4] Finally, we observe that while Section 1713 bars judi-
cial 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 regula-
tions 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.
III. CONCLUSION
For the reasons given above, the decision of the district
court is AFFIRMED and the motion for an injunction pend-
ing appeal is DENIED as moot.
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