Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding D.C. Nos. 9:11-cv-00070-DWM, 9:11-cv-00071- DWM
The opinion of the court was delivered by: Schroeder, Circuit Judge:
D.C. Nos. 9:11-cv-00070-DWM,
Argued and Submitted November 8, 2011-Pasadena, California
Before: Mary M. Schroeder, Stephen Reinhardt, and Mary H. Murguia, Circuit Judges.
Opinion by Judge Schroeder
Plaintiff environmental groups seek to enjoin the implementation of a statute, Section 1713 of the 2011 Appropriations Act, that orders the Secretary of the Interior to remove a portion of a distinct population of gray wolves from the protections of the Endangered Species Act ("ESA") without regard to any statute or regulation that might otherwise apply. Section 1713 effectively undid an earlier district court decision that found that such an action by the government, a "partial 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 Audubon Society, 503 U.S. 429 (1992), we affirm.
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 distinct population of gray wolves in the northern Rocky Mountains 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 various 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 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 judicial 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 ...