News and Articles

March 22, 2012

Congressional Directive to Partially Delist the Gray Wolf Under the Endangered Species Act Did Not Violate Separation of Powers Doctrine

Congressional Directive to Partially Delist the Gray Wolf Under the Endangered Species Act Did Not Violate Separation of Powers Doctrine

Alliance for the Wild Rockies v. Salazar [Ninth Circuit Court of Appeals Nos. 11-35670, 11-35661 [filed March 14, 2012]

By Andrea A. Matarazzo

Environmental groups sued seeking to enjoin the Secretary of the Interior (“Secretary”) from implementing section 1713 of the 2011 Appropriations Act, which ordered the Secretary to remove a portion of a distinct population of gray wolves in the northern Rocky Mountains from the protections of the Endangered Species Act (“ESA”).  Section 1713 effectively reversed an earlier district court decision finding that such an action by the government – a “partial delisting” – would violate the ESA.  Plaintiffs challenged implementation of the statute, claiming that it violated the separation of powers doctrine.  The district court disagreed, and concluded that Congress had acted within its constitutional authority to change the laws applicable to pending litigation.  Relying primarily on the precedent in Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), the Ninth Circuit Court of Appeals affirmed.


In Robertson, Congress replaced the environmental laws applicable to spotted owl litigation with new provisions and effectively directed the agency to comply with the new provisions.  The appellate court in the present case reasoned that here, as in Robertson, Congress directed an agency to take particular action challenged in pending litigation (i.e., it directed the U.S. Fish and Wildlife Service [“FWS”] to adopt a rule partially delisting the Gray Wolf and removing a distinct population of the species from the protections of the ESA) by changing the law applicable to that case.  Congress had directed the FWS to issue a rule partially delisting the gray wolf “without regard to any other provision of statute or regulation that applies to issuance of such rule.”  Accordingly, the court explained, Congress had amended the law applicable to pending litigation to permit partial delisting in this instance.  The legislation did not direct the court to make any findings or to make any particular application of law to facts.  Rather, the statute changed the governing substantive law, and as such, it did not violate the constitutional separation of powers.


Authored by:

Andrea A. Matarazzo

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