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 ...
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