FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTER FOR BIOLOGICAL No. 18-35629
DIVERSITY,
Plaintiff-Appellant, D.C. No.
3:17-cv-00091-SLG
v.
DAVID BERNHARDT, in his OPINION
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.
2 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 5, 2019
Anchorage, Alaska
Filed December 30, 2019
Before: Richard C. Tallman, Sandra S. Ikuta,
and N. Randy Smith, Circuit Judges.
Opinion by Judge Ikuta
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 3
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.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
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.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 5
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.
COUNSEL
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.
6 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
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.
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.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 7
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
1
This requirement that an agency submit its report before its rule can
take effect does not apply to “any rule that establishes, modifies, opens,
closes, or conducts a regulatory program for a commercial, recreational,
or subsistence activity related to hunting, fishing, or camping.” § 808(1).
Such a rule will “take effect at such time as the Federal agency
promulgating the rule determines.” Id.
2
Section 801(d)(1)–(2)(A) provides:
(d)(1) In addition to the opportunity for review
otherwise provided under this chapter, in the case of
any rule for which a report was submitted in accordance
with subsection (a)(1)(A) during the period beginning
on the date occurring–
(A) in the case of the Senate, 60 session days, or
8 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
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
(B) in the case of the House of Representatives,
60 legislative days,
before the date the Congress adjourns a session of
Congress through the date on which the same or
succeeding Congress first convenes its next session,
section 802 shall apply to such rule in the succeeding
session of Congress.
(2)(A) In applying section 802 for purposes of such
additional review, a rule described under paragraph (1)
shall be treated as though–
(i) such rule were published in the Federal Register
(as a rule that shall take effect) on–
(I) in the case of the Senate, the 15th
session day, or
(II) in the case of the House of
Representatives, the 15th legislative
day,
after the succeeding session of Congress first
convenes; and
(ii) a report on such rule were submitted to
Congress under subsection (a)(1) on such date.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 9
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
10 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
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 (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
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 11
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
3
See 162 Cong. Rec. S6339-04, S6346 (daily ed. Nov. 15, 2016);
162 Cong. Rec. H6160-01, H6169 (daily ed. Nov. 14, 2016); GAO
Federal Rules Summary Listing, U.S. GOV’T ACCOUNTABILITY OFF.,
http://www.gao.gov/fedrules/186189 (last visited Oct. 22, 2019).
4
After October 5, 2016, less than 60 session days (Senate) and
less than 60 legislative days (House of Representatives) remained
before the 114th Congress adjourned on January 3, 2017. See
Past Days in Session of the U.S. Congress, CONGRESS.GOV,
https://www.congress.gov/past-days-in-session (under “Senate,” click the
link next to 114th, 2nd Session; under “House,” click the link next to
114th, 2nd Session) (last visited Oct. 22, 2019).
12 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
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 Non-Subsistence Take of
Wildlife, and Public Participation and Closure Procedures, on
National Wildlife Refuges in Alaska Under the Congressional
Review Act, 82 Fed. Reg. 52009-01, 52009 (Nov. 9, 2017).
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 13
In April 2017, CBD sued Interior in district court, seeking
to reinstate the Refuges Rule.5 Five months later, CBD filed
an amended complaint in which it alleged (1) the Joint
Resolution and the CRA violate the Take Care Clause of the
Constitution; (2) the CRA’s Reenactment Provision suffered
from unconstitutional vagueness (on appeal, CBD clarified
that it was actually asserting a violation of the nondelegation
doctrine); and (3) Interior acted ultra vires in adhering to the
Joint Resolution and rescinding the Refuges Rule. The
district court granted Interior’s motion to dismiss, holding
that CBD failed to establish Article III standing and failed to
state a claim. CBD timely appealed. We review the district
court’s order de novo. L.A. Lakers, Inc. v. Fed. Ins. Co.,
869 F.3d 795, 800 (9th Cir. 2017).
III
We begin by considering the government’s argument that
we lack jurisdiction to consider CBD’s claim that the
Reenactment Provision violates the nondelegation doctrine,
the rule that Congress cannot delegate its legislative powers
unless it “lay[s] down by legislative act an intelligible
principle to which the person or body authorized to [act] is
directed to conform.” J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928). The government argues
that CBD lacks standing to raise this claim. We review
jurisdictional questions de novo. In re Gugliuzza, 852 F.3d
884, 889 (9th Cir. 2017).
5
The district court permitted several parties to intervene, including
the Pacific Legal Foundation, Alaska Outdoor Council, Big Game
Forever, Kurt Whitehead, Joe Letarte, Safari Club International, the
National Rifle Association of America, and the State of Alaska.
14 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
“To establish standing, a plaintiff must present an injury
that is concrete, particularized, and actual or imminent; fairly
traceable to the defendant’s challenged action; and
redressable by a favorable ruling.” Horne v. Flores, 557 U.S.
433, 445 (2009). Conjectural, hypothetical, or speculative
injuries, such as “[a]llegations of possible future injury,” do
not suffice. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990);
see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992). Rather, “[a] threatened injury must be certainly
impending to constitute injury in fact.” Whitmore, 495 U.S.
at 158 (internal quotation marks omitted) (quoting Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979)); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398,
409 (2013). A plaintiff must establish standing for every
claim it wishes to challenge, even where a plaintiff raises the
same legal challenge to multiple sections of the same statute.
Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 892
(9th Cir. 2007).
Here, CBD’s challenge to the Reenactment Provision is
legally distinct from its challenge to the Disapproval
Provision and the Joint Resolution. Therefore, CBD must
separately establish standing for its argument that the
Reenactment Provision violates the nondelegation doctrine.
See id. CBD argues it has adequately demonstrated standing
because the Reenactment Provision deprives Interior of the
ability to reissue the Refuges Rule “in substantially the same
form,” or to issue a new rule that is substantially the same as
the Refuges Rule. 5 U.S.C. § 801(b)(2). As a result, CBD
claims, the Reenactment Provision precludes Interior from
protecting wildlife that CBD’s members enjoy observing in
the national wildlife refuges in Alaska. Accordingly, CBD’s
members have suffered a cognizable injury in fact due to the
operation of the Reenactment Provision.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 15
This argument fails because CBD’s alleged injury rests on
a speculative chain of future possibilities, which do not
satisfy the requirements of Article III. Whitmore, 495 U.S. at
157–58. “At the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice,”
Lujan, 504 U.S. at 561, but such allegations must “permit the
court to infer more than the mere possibility of [injury],”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). CBD’s alleged
injury here is premised on the assumption that Interior would
reissue the Refuges Rule or a substantially similar rule if a
court ruled that the Reenactment Provision were invalid. But
CBD alleged no facts raising a plausible inference that
Interior would take such steps, and thus has not “nudged” its
claim of injury “across the line from conceivable to
plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). Because CBD has failed to allege an injury in
fact that is more than speculative, it does not have standing to
challenge the Reenactment Provision. We therefore dismiss
CBD’s argument that the Reenactment Clause violates the
nondelegation doctrine.
IV
We next turn to CBD’s claim that the Disapproval
Provision and the Joint Resolution violate the Take Care
Clause.
A
We first consider whether the CRA’s Jurisdiction-
Stripping Provision bars review of this constitutional claim.
The Jurisdiction-Stripping Provision provides that “[n]o
determination, finding, action, or omission under this chapter
shall be subject to judicial review.” 5 U.S.C. § 805. On its
16 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
face, this language bars judicial review of all challenges to
actions under the CRA, including constitutional challenges.
The Supreme Court has held, however, that when we construe
“a statute that purports to deny any judicial forum for a
colorable constitutional claim,” we apply a heightened
standard. Elgin v. Dep’t of Treasury, 567 U.S. 1, 9 (2012)
(internal quotation marks omitted) (quoting Webster v. Doe,
486 U.S. 592, 603 (1988)). Under the applicable canon of
statutory construction, “where Congress intends to preclude
judicial review of constitutional claims its intent to do so
must be clear.” Webster, 486 U.S. at 603. In the absence of
an explicit statutory provision that “bars judicial
consideration of appellee’s constitutional claims,” Johnson v.
Robison, 415 U.S. 361, 367 (1974) (emphasis added), we
should conclude that Congress did not intend to “preclude
consideration of colorable constitutional claims arising out of
. . . actions” taken under a federal statute, Webster, 486 U.S.
at 603. This rule of statutory construction is necessary to
avoid “the serious constitutional question that would arise if
we construed [a statute] to deny a judicial forum for
constitutional claims.” Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 681 n.12 (1986) (internal quotation
marks omitted) (quoting Weinberger v. Salfi, 422 U.S. 749,
762 (1975)). Because “[i]t is presumable that Congress
legislates with knowledge of [the Supreme Court’s] basic
rules of statutory construction,” McNary v. Haitian Refugee
Ctr., Inc., 498 U.S. 479, 496 (1991), we may presume that
Congress will use specific language if it intends to foreclose
judicial review of constitutional claims. Here, the
Jurisdiction-Stripping Provision does not include any explicit
language barring judicial review of constitutional claims.
Therefore, we presume that Congress did not intend to bar
such review.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 17
B
Because we are not barred from considering CBD’s
constitutional claim, we turn to CBD’s argument that the
CRA and Joint Resolution violate separation-of-powers
principles because they interfere with the Executive Branch’s
duty under the Take Care Clause of the Constitution. See
U.S. Const. art II, § 3 (“[The President] shall take Care that
the Laws be faithfully executed . . . .”). As the Supreme
Court has explained in analyzing similar claims, a court’s
understanding of “the reach and purpose” of the constitutional
provision at issue (here, the Take Care Clause) must be
informed by “[t]he separation-of-powers doctrine, and the
history that influenced its design.” Boumediene v. Bush,
553 U.S. 723, 746 (2008).
Congress delegated its authority under the Property
Clause to manage the federal wildlife refuges in Alaska to the
Executive Branch (i.e., Interior) pursuant to the National
Wildlife Refuge System Administration Act, the National
Wildlife Refuge System Improvement Act, and ANILCA.
According to CBD, Congress did not amend those acts
through the constitutionally required process of bicameralism
and presentment, and therefore Interior retains all the
authority delegated by Congress in those acts. By enacting
the Joint Resolution, CBD contends, Congress required
Interior to revoke a rule that Interior deemed necessary for
managing the federal wildlife refuge system. Therefore, CBD
argues, the Joint Resolution prevents Interior from
implementing its constitutional duty to faithfully execute the
laws.
This argument fails. When Congress enacts legislation
that directs an agency to issue a particular rule, “Congress has
18 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
amended the law.” Alliance for the Wild Rockies v. Salazar,
672 F.3d 1170, 1174 (9th Cir. 2012). In Alliance for the Wild
Rockies, Congress enacted legislation ordering the FWS to
reissue a rule that had been struck down by a district court on
the ground that it violated the Endangered Species Act. Id. at
1173–74. We held that the legislation effectively amended
the Endangered Species Act. Id. at 1175. Moreover, we held
that because the legislation changed the substantive law, it did
“not violate the constitutional separation of powers” even
though it “directed an agency to take particular action
challenged in pending litigation by changing the law
applicable to that case.” Id. at 1174. For the same reason,
validly enacted legislation that requires an agency to take a
specified action does not impinge on the Take Care Clause or
violate separation-of-powers principles.
Here, Congress complied with the process of
bicameralism and presentment in enacting the Joint
Resolution,6 because the Joint Resolution passed both houses
of Congress and was signed by the President into law. By
enacting the Joint Resolution, Congress amended the
substantive environmental law and deprived the Refuges Rule
of any force or effect. Accordingly, the Joint Resolution is
enforceable as a change to substantive law, even though it did
not state that it constituted an amendment to the National
Wildlife Refuge System Administration Act, the National
Wildlife Refuge System Improvement Act, or ANILCA.
6
Article I of the Constitution vests the legislative power in Congress
and prescribes the process by which a bill becomes a law. U.S. Const.
art. I, §§ 1, 7. Under the Presentment Clause, the House of
Representatives and the Senate must each pass a bill, and then present it
to the President, who may then sign the bill into law. U.S. Const. art. I,
§ 7, cl. 2. This process is referred to as bicameralism and presentment.
See INS v. Chadha, 462 U.S. 919, 951 (1983).
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 19
Because Congress properly enacted the Joint Resolution,
and therefore validly amended Interior’s authority to
administer national wildlife refuges in Alaska, Congress did
not prevent the President from exercising his constitutional
duty to faithfully execute the laws. Indeed, the President
now has the constitutional obligation to execute the Joint
Resolution. U.S. Const. art II, § 3; see also Alliance for the
Wild Rockies, 672 F.3d at 1174. Because the Joint Resolution
does not violate the Take Care Clause, CBD’s complaint fails
to state a claim that is plausible on its face.
V
Finally we consider CBD’s statutory claim. CBD claims
that § 801(d)(1) (which allows Congress to disapprove of
a rule introduced in the previous Congress) applies only
to rules that were submitted “in accordance with”
§ 801(a)(1)(A) (which provides that “[b]efore a rule can take
effect, the Federal agency promulgating such rule” must
submit a specified report to Congress). According to CBD,
the Refuges Rule could not be submitted “in accordance
with” § 801(a)(1)(A), because that section requires a federal
agency to submit a report to Congress “[b]efore a rule can
take effect,” but the Refuges Rule took effect on September
6, 2016, the date specified by Interior, nearly a month before
the report was submitted to Congress. See Refuges Rule,
81 Fed. Reg. at 52248; 5 U.S.C. § 808 (providing that a rule
relating to a “regulatory program” for hunting “shall take
effect at such time as the Federal agency promulgating the
rule determines”). Because the Refuges Rule was not eligible
for disapproval in the new session of Congress, CBD argues,
the Joint Resolution was invalid and it did not authorize
Interior to rescind the Refuges Rule. Therefore, CBD
20 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
concludes, Interior acted ultra vires in rescinding the Refuges
Rule pursuant to the (invalid) Joint Resolution.
Because this claim is based on the statute, we first
consider whether the CRA’s Jurisdiction-Stripping Provision
bars judicial review. Congress is generally free to limit the
jurisdiction of federal courts. United States v. Hudson,
7 Cranch 32, 33 (1812). But in order to do so, Congress must
enact a statute that provides “clear and convincing evidence
that Congress intended to deny” access to judicial review.
Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc.,
502 U.S. 32, 44 (1991). A statute provides such clear and
convincing evidence, “and the presumption favoring judicial
review [is] overcome, whenever the congressional intent to
preclude judicial review is ‘fairly discernible in the statutory
scheme.’” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351
(1984) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.
Camp, 397 U.S. 150, 157 (1970)).
Here, Congress’s intent to preclude judicial review is
“fairly discernible.” Pursuant to the Jurisdiction-Stripping
Provision, we are deprived of jurisdiction to review any claim
challenging a “determination, finding, action, or omission”
under the CRA. 5 U.S.C. § 805. In reaching this conclusion,
we join our sister circuits which have likewise held that
federal courts do not have jurisdiction over statutory claims
that arise under the CRA. See Montanans For Multiple Use
v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009); Via
Christi Reg’l Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259, 1271
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 21
n.11 (10th Cir. 2007), abrogated on other grounds by Azar v.
Allina Health Servs., 139 S. Ct. 1804 (2019).7
Here, CBD challenges Congress’s enactment of the Joint
Resolution. Because enacting a joint resolution of
disapproval is an action under the CRA, we lack jurisdiction
to consider this claim.
CBD nevertheless argues that because the Refuges Rule
was not eligible for disapproval in the new session of
Congress, the Joint Resolution was not enacted “under” the
CRA and therefore is not a “determination, finding, action, or
omission under this chapter” for purposes of § 805. In
making this argument, CBD relies on In re Border
Infrastructure Environmental Litigation, which considered a
jurisdictional bar imposed by the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA). 915 F.3d 1213,
1219–20 (9th Cir. 2019) (BIEL). The jurisdictional bar
provided that “[t]he district courts of the United States shall
have exclusive jurisdiction to hear all causes or claims arising
from any action undertaken, or any decision made, by the
Secretary of Homeland Security pursuant to” a statutory
waiver provision giving the Secretary authority to waive
certain legal requirements. Id. at 1220 (quoting IIRIRA
§ 102(c)(2)(A)). We held that a plaintiff’s claim “arises
from” the waiver provision, and is thus subject to the
jurisdictional bar, only when the plaintiff challenges a waiver
7
CBD argues that Liesegang v. Sec’y of Veterans Affairs held that
courts have jurisdiction to consider statutory challenges to the CRA.
312 F.3d 1368, 1373 (Fed. Cir. 2002), amended on reh’g in part,
65 F. App’x 717 (Fed. Cir. 2003). We disagree; the plaintiffs in
Liesegang did not raise this issue, and the Federal Circuit thus had no
occasion to consider it. Id.
22 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT
decision by the agency, not when the plaintiff challenges
agency action authorized by some other part of the statute.
Id. at 1220–21.
CBD contends that (like in BIEL) a plaintiff’s claim is
subject to CRA’s Jurisdiction-Stripping Provision only if the
plaintiff challenges an action under CRA. Because CBD is
challenging Interior’s rescission of the Refuges Rule and not
any action under CRA, CBD argues, its claim is not barred.
We disagree. CBD challenges Interior’s rescission of the
Refuges Rule solely on the ground that Congress did not
validly enact the Joint Resolution. Therefore, CBD’s claim
necessarily involves a challenge to a congressional
“determination, finding, action or omission” under the CRA,
and as such is subject to the Jurisdiction-Stripping Provision.
Accordingly, we lack authority to consider this claim.
5 U.S.C. § 805.8
***
In short, Congress’s efforts to exercise oversight of
federal administrative agencies by means of the CRA are
consistent with the “structure of this government, and the
distribution of this mass of power among its constituent
parts.” The Federalist No. 47, p. 321 (James Madison)
(Easton Press 1979). Congress can therefore use the
streamlined procedure in the CRA to disapprove federal
8
Because we lack jurisdiction to review CBD’s statutory claim, we
do not reach the question whether CBD’s claim is non-justiciable under
the Rules Clause, U.S. Const. art. I, § 5, cl. 2. See Consejo de Desarrollo
Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1172 (9th
Cir. 2007) (interpreting the Rules Clause and concluding that “the
Constitution textually commits the question of legislative procedural rules
to Congress”).
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 23
regulations without offending the Take Care Clause, and
Congress has validly deprived us of jurisdiction to consider
claims that it violated the CRA’s statutory requirements.
AFFIRMED IN PART; DISMISSED IN PART.9
9
Each party shall bear its own costs.