The U.S. Court of Appeals for the Ninth Circuit has upheld a law that orders the Secretary of the Interior to reissue a rule that delists a distinct population of gray wolves in the northern Rocky Mountains without regard to the Endangered Species Act ("ESA") and without judicial review. Alliance for the Wild Rockies v. Salazar, No. 11-36552 (9th Cir. March 14, 2012). As previously reported, in 2009 the Fish and Wildlife Service ("Service") issued what is known as the "2009 Rule," which designated a distinct population of gray wolves in the northern Rocky Mountains and removed ESA protection for all except the populations in Wyoming. The United States District Court for the District of Montana struck down the 2009 Rule as violating the ESA because the ESA does not permit partial delisting of a distinct population segment.
In April 2011, President Obama signed into law Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 ("Section 1713"), which included a provision directing the Secretary of Interior to reissue the 2009 Rule without regard to the ESA and without judicial review. A group of plaintiffs challenged the constitutionality of Section 1713 arguing that it violated the doctrine of separation of powers.
The Ninth Circuit rejected the challenge, concluding that Section 1713 is constitutional and that when Congress directed the Service to issue the 2009 Rule "without regard to any other provision of statute or regulation that applies to issuance of such rule," Congress was in effect amending the law applicable to the agency’s action, which is not a violation of the separation of powers. Therefore, the court found that Section 1713 is entitled to be enforced.