The Advance Notice of Proposed Rulemaking can be accessed here.
The Ninth Circuit affirmed a lower court ruling that BLM’s grant of a right-of-way for a wind energy project did not trigger a requirement to consult with the Fish and Wildlife Service (Sierra Club v. BLM, 13-15383). SUMMARY (not part of the opinion, a full copy of which is pasted below) The panel affirmed the […]
EPA and the Army Corps of Engineers have announced the new “waters of the U.S.” rule. Press release from EPA, Corps Link to rule Press releases, news coverage NAHB statement American Farm Bureau Federation statement National Farmers Union: “NFU’s policy opposes any expansion of jurisdiction under the Clean Water Act (CWA), but EPA has made […]
Colorado Gov. John Hickenlooper takes steps to protect the shrinking population of greater sage grouse – http://t.co/5pSSL3eDkx — SageGrouseInitiative (@SageGrouseInit) May 22, 2015 Here is Senate Energy and Water appropriations report (with spending details) as approved by Appropriation Committee http://t.co/Ql04u3iUNV — NE-MW Institute (@NEMWIUpperMiss) May 22, 2015 Duke Energy Fined $102M for Clean Water Act […]
The Gray Lady, as she is sometimes known, has an article today predicting an announcement of the controversial “waters of the U.S.” rule from the Obama Administration “in the coming days.” Coral Davenport of the Times reports that the announcement could come as soon as today or early next week. EPA spokesman Robert Daguillard would […]
The Fish and Wildlife Service cannot enforce a rule prohibiting the interstate shipment of reticulated pythons or green anacondas, unless the destination is Florida or Texas, a federal judge ruled late Tuesday (U.S. Ass’n of Reptile Keepers v. Jewell, 13-2007 RDM, D.D.C.). U.S. District Judge Randolph Moss granted a preliminary injunction sought by reptile dealers […]
Filing a listing petition would not be as easy as it traditionally has been, under a new proposal announced today by the Fish and Wildlife and National Marine Fisheries services. In a move that could be interpreted as a response to congressional criticism that the FWS gives state input short shrift, FWS is proposing that […]
Nossaman LLP has added some experienced ESA attorneys from Sedgwick LLP to its environmental practice. Alan Glen and Steve Quarles have joined the firm as partners. Glen will be based in the firm’s Austin office, Quarles in D.C. Four other lawyers from Sedgwick also have joined Nossaman’s Environment and Land Use Practice Group, the firm announced […]
The Fish and Wildlife and National Marine Fisheries services will publish a new rule on May 11 allowing them to use surrogates when they prepare incidental take statements. The rule was posted on the web by FWS a few days ago. In their press release, the services said it can sometimes be “impractical” to quantify […]
Hearing, live (from Senate EPW page) Link to EPW page on hearing Sen. Cory Booker (D-N.J.) also has introduced a bill, S. 1081, to ban the use of body-gripping traps in national wildlife refuges. Center for Biological Diversity news release (click the links in the release for more information from THOMAS and the senators’ web […]
The Ninth Circuit Court of Appeals has denied a challenge brought by the Center for Biological Diversity and other conservation groups to a congressional rider that effectively delisted Northern Rocky Mountain gray wolves.
"A three-judge panel rejected the conservation organizations’ argument that the rider is unconstitutional because it violates the separation-of-powers doctrine," CBD said in a press release.
The panel included Circuit Judges Mary M. Schroeder, Stephen Reinhardt and Mary H. Murguia. Schroeder wrote the decision. Here is the court's analysis and conclusion:
The cornerstones of plaintiffs’ separation of powers challenge were laid in the mid-19th century when the Supreme Court decided United States v. Klein, 80 U.S. 128 (1871) and Pennsylvania v. The Wheeling and Belmont Bridge Co., 59 U.S. 421 (1855).
In Klein, the Supreme Court struck down an act of Congress that dictated the result in pending litigation. The plaintiff 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 disloyalty. 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 further 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 jurisdiction 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.
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 legislation, however, made the bridge a post-road for passage of the United States mail and forbade users of the river from interfering 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. Robertson, 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 logging’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 environmental concerns in the pending litigation were to be satisfied and barred judicial review. It provided:
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 forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) 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 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 prerogative of the courts. Id. at 440 (citing TVA v. Hill, 437 U.S. 153, 190 (1978)).
 Appellants’ arguments that Section 1713 is a repeal rather than an amendment must fail for a similar reason. Congress 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.
 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 project 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 preclusion 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 constitutionality 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 district court and this court. We reject any such interpretation.
 Finally, we observe that while Section 1713 bars judicial 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 regulations 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.
For the reasons given above, the decision of the district court is AFFIRMED and the motion for an injunction pending appeal is DENIED as moot.