Friends of Animals v. Sally Jewell , 824 F.3d 1033 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2016 Decided June 3, 2016
No. 15-5070
FRIENDS OF ANIMALS,
APPELLANT
v.
SALLY JEWELL, IN HER OFFICIAL CAPACITY AS SECRETARY OF
INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00357)
Michael Ray Harris argued the cause for appellant. With
him on the briefs was Jennifer E. Barnes.
Robert H. Oakley, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were John C. Cruden, Assistant Attorney General, and
Andrew C. Mergen and Matthew Littleton, Attorneys. Nina C.
Robertson, Attorney, entered an appearance.
Anna M. Seidman, Douglas S. Burdin, and Jeremy E.
Clare were on the brief for defendant-intervenor-appellee
Safari Club International.
2
Before: KAVANAUGH, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Senior Circuit Judge
SENTELLE.
EDWARDS, Senior Circuit Judge: Section 9 of the
Endangered Species Act of 1973 (“Act” or “ESA”), 16 U.S.C.
§ 1531 et seq., makes it unlawful “for any person subject to
the jurisdiction of the United States to,” inter alia, “take” any
endangered species within the United States or “possess, sell,
deliver, carry, transport, or ship, by any means whatsoever”
any endangered species “taken” in violation of the Act. 16
U.S.C. § 1538(a)(1)(B), (D). Under the Act, “take” means
“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.” Id.§ 1532(19). Section 10 of the Act authorizes the Secretary of
the Interior, who has delegated his authority to the Fish and
Wildlife Service (“FWS” or “Service”), to, inter alia, “permit
. . . any act otherwise prohibited by [Section 9] for scientific
purposes or to enhance the propagation or survival of the
affected species.” Id. § 1539(a)(1)(A). Section 10 also
requires the Secretary to publish notices in the Federal
Register of all permit applications and make available to the
public information received as part of any such applications.
Id. § 1539(c).
In 2005, the Fish and Wildlife Service listed three
antelope species – the scimitar-horned oryx (Oryx dammah),
addax (Addax nasomaculatus), and dama gazelle (Gazella
dama) – as endangered. See Final Rule to List the Scimitar-
Horned Oryx, Addax, and Dama Gazelle as Endangered
3
(“Listing Rule”), 70 Fed. Reg. 52,319, 52,319 (Sept. 2, 2005).
On the same day that the Service designated the antelope
species as endangered, it issued a blanket exemption for
qualifying domestic entities and individuals – including some
sport hunting programs – that breed the antelope species in
captivity. See Exclusion of U.S. Captive-Bred Scimitar-
Horned Oryx, Addax, and Dama Gazelle from Certain
Prohibitions (“Captive-Bred Exemption”), 70 Fed. Reg.
52,310, 52,311, 52,317 (Sept. 2, 2005). Under the Captive-
Bred Exemption, the FWS allowed qualified owners of
domestic, captive-bred antelope to engage in activities
otherwise prohibited by Section 9 of the ESA without
applying for individual permits on a case-by-case basis. Id. at
52,317.
In 2009, the District Court, in an action preceding this
case, determined that the Captive-Bred Exemption violated
Section 10(c) of the Act. Friends of Animals v. Salazar
(Antelope I), 626 F. Supp. 2d 102, 115 (D.D.C. 2009). The
court found “that the text, context, purpose and legislative
history of the statute make clear that Congress intended
permits for the enhancement of propagation or survival of an
endangered species to be issued on a case-by-case basis
following an application and public consideration of that
application,” not pursuant to blanket exemptions. Id.Following this decision, FWS revoked the Captive-Bred
Exemption. See Removal of the Regulation That Excludes
U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama
Gazelle from Certain Prohibitions (“Removal Rule”), 77 Fed.
Reg. 431, 431 (Jan. 5, 2012).
On January 17, 2014, President Obama signed into law
the Consolidated Appropriations Act, 2014 (“Appropriations
Act”). Division G, Title I, Section 127 of the Appropriations
Act (“Section 127”) provides:
4
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 September 2,
2005 (70 Fed. Reg. 52310 et seq.) without regard to any
other provision of statute or regulation that applies to
issuance of such rule.
Pub. L. No. 113-76, div. G, tit. I, § 127, 128 Stat. 5, 315-16
(2014). On March 19, 2014, the Service complied with
Section 127 and reinstated the Captive-Bred Exemption. See
Reinstatement of the Regulation That Excludes U.S. Captive-
Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle from
Certain Prohibitions (“Reinstatement Rule”), 79 Fed. Reg.
15,250, 15,250 (Mar. 19, 2014) (codified at 50 C.F.R. §
17.21(h)).
On March 5, 2014, Friends of Animals, an animal
advocacy organization, brought suit against FWS and the
Department of the Interior (“Federal Appellees”), alleging
that the Reinstatement Rule violates the Act and the
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and
that Section 127 violates the United States Constitution. See
Friends of Animals v. Jewell, 82 F. Supp. 3d 265, 267 (D.D.C.
2015). Safari Club International intervened as a defendant in
the suit (together with the Federal Appellees, “Appellees”).
See id. at 270.
On cross-motions for summary judgment, the District
Court granted Appellees’ motions for summary judgment and
denied Friends of Animals’ motion for summary judgment.
Id. at 279. The District Court found that the Reinstatement
Rule was not arbitrary or capricious under the APA, id. at
278-79; that Friends of Animals did not have Article III
standing to challenge the constitutionality of Section 127, id.5
at 278; and that even if Friends of Animals had standing,
Section 127 is not unconstitutional, id. at 278 n.9. Friends of
Animals now appeals.
Under FEC v. Akins, 524 U.S. 11 (1998), Friends of
Animals has informational standing to pursue its claims, so
there is no jurisdictional impediment to this lawsuit. We reject
Friends of Animals’ claims on the merits, however. Congress
acted within constitutional bounds when it passed Section
127. Therefore, there can be no doubt that the Service was
fully authorized to reinstate the Captive-Bred Exemption.
I. BACKGROUND
A. Statutory Background
The stated purpose of the Endangered Species Act is “to
provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be
conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such
steps as may be appropriate to achieve the purposes of the
treaties and conventions set forth in subsection (a) of this
section.” 16 U.S.C. § 1531(b). Section 4 of the Act directs the
Secretary of the Interior, who has delegated his authority to
FWS, to list species that he determines are “threatened” or
“endangered” under specified criteria. Id. § 1533. “When a
species . . . is listed as either ‘threatened’ or ‘endangered’
under the Act, it is then subject to a host of protective
measures designed to conserve the species.” In re Polar Bear
Endangered Species Act Listing & Section 4(d) Rule Litig.—
MDL No. 1993, 709 F.3d 1, 2 (D.C. Cir. 2013).
As noted above, Section 9 of the Act makes it unlawful
“for any person subject to the jurisdiction of the United States
6
to,” inter alia, “take” any endangered species within the
United States or “possess, sell, deliver, carry, transport, or
ship, by any means whatsoever” any endangered species
“taken” in violation of the Act. 16 U.S.C. § 1538(a)(1)(B),
(D). The Act defines “take” to mean “harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt
to engage in any such conduct.” Id. § 1532(19). While the Act
contains specific guidelines when it comes to determining
whether a species should be listed as endangered, FWS has
flexibility under the Act in assessing how to conserve a
species after it has been listed as endangered. Most relevant to
this case, Section 10 of the Act authorizes the Service to, inter
alia, “permit . . . any act otherwise prohibited by [Section 9]
for scientific purposes or to enhance the propagation or
survival of the affected species.” Id. § 1539(a)(1)(A).
Section 10(c) of the Act specifies that
[t]he Secretary shall publish notice in the Federal
Register of each application for an exemption or permit
which is made under this section. Each notice shall invite
the submission from interested parties, within thirty days
after the date of the notice, of written data, views, or
arguments with respect to the application; except that
such thirty-day period may be waived by the Secretary in
an emergency situation where the health or life of an
endangered animal is threatened and no reasonable
alternative is available to the applicant, but notice of any
such waiver shall be published by the Secretary in the
Federal Register within ten days following the issuance
of the exemption or permit. Information received by the
Secretary as a part of any application shall be available to
the public as a matter of public record at every stage of
the proceeding.
7
Id. § 1539(c). Section 10(d) further provides that the
Secretary may only grant a Section 10 permit if he finds and
publishes in the Federal Register that the permit was applied
for in good faith, will not operate to the disadvantage of the
endangered species, and will be consistent with the purposes
and policy of the Act. Id. § 1539(d).
B. Factual and Procedural Background
This case concerns three antelope species – the scimitar-
horned oryx (Oryx dammah), addax (Addax nasomaculatus),
and dama gazelle (Gazella dama) – whose herds have
dwindled, if not disappeared, from their native environments
in northern Africa. As of June 2013, “[t]he oryx is believed to
be extirpated in the wild, the addax numbers fewer than 300,
and the dama gazelle numbers fewer than 500.” 12-Month
Findings on Petitions to Delist U.S. Captive Populations of
the Scimitar-horned Oryx, Dama Gazelle, and Addax, 78 Fed.
Reg. 33,790, 33,791 (June 5, 2013). Despite dwindling wild
populations, captive populations of the three antelope species
exist in the United States and other parts of the world. As of
2013, the Fish and Wildlife Service estimated that there were
“approximately 4,000 to 5,000 scimitar-horned oryx, 1,500
addax, and 750 dama gazelle in captivity worldwide.” Id.FWS has spent more than two decades considering the
antelope species with input from both commercial and non-
profit groups interested in conserving the species for different
ends. A detailed account of this regulatory history is set forth
in Safari Club International v. Jewell, 960 F. Supp. 2d 17, 33-
41 (D.D.C. 2013). Here we provide only a summary of the
agency’s regulatory efforts that are relevant to the present
dispute.
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In 2005, the Service listed the scimitar-horned oryx,
addax, and dama gazelle as endangered throughout the world.
See Listing Rule, 70 Fed. Reg. at 52,319. At the same time,
the Service issued the Captive-Bred Exemption, which
authorized activities with respect to these species that were
otherwise prohibited under Section 9 without individual
permits. 70 Fed. Reg. at 52,310, 52,317. In other words, with
respect to U.S. captive-bred herds of the three antelope
species, the Captive-Bred Exemption provided a blanket
exemption from these proscriptions of Section 9. The rule
required persons claiming the benefit of the exemption to
maintain accurate written records of activities, including
births, deaths, and transfer of specimens, and to make those
records accessible to the Fish and Wildlife Service for
inspection. Captive-Bred Exemption, 70 Fed. Reg. at 52,317.
In 2009, shortly after the Captive-Bred Exemption was
promulgated, two sets of plaintiffs, including Friends of
Animals, filed lawsuits against FWS challenging the rule in
the United States District Court for the Northern District of
California and in the United States District Court for the
District of Columbia. The lawsuits were then consolidated to
be heard in United States District Court for the District of
Columbia. See Antelope I, 626 F. Supp. 2d 102. After
reviewing the parties’ competing motions for summary
judgment, the District Court granted partial summary
judgment in favor of the plaintiffs. Id. at 120. In finding that
the Captive-Bred Exemption violated Section 10(c) of the
Act, the court pointed to the words of the statute that say that
“[t]he Secretary shall publish notice in the Federal Register of
each application for an exemption or permit which is made
under this section.” Id. at 115 (alteration in original) (quoting
16 U.S.C. § 1539(c)). The court then concluded that, “[a]fter
examining the text, context, purpose and legislative history of
section 10,” it was clear that “subsection 10(c) requires case-
9
by-case consideration before the FWS may permit otherwise
prohibited acts to enhance the propagation or survival of
endangered species.” Id. at 116.
On July 7, 2011, following the court’s decision in
Antelope I, the Service published a proposed rule to withdraw
in full the Captive-Bred Exemption. On January 5, 2012,
FWS issued a final rule removing the Captive-Bred
Exemption. The rule explained:
This change to the regulations is in response to a court
order that found that the rule for these three species
violated section 10(c) of the Act. These three antelope
species remain listed as endangered under the Act, and a
person will need to qualify for an exemption or obtain an
authorization under the current statutory and regulatory
requirements to conduct any prohibited activities.
Removal Rule, 77 Fed. Reg. at 431.
After FWS issued the proposed rule, but before issuance
of the final Removal Rule, Safari Club International filed a
suit in District Court alleging that the Service had violated the
Act and the APA by including U.S. captive-bred herds of the
three antelope species in its 2005 Listing Rule. See Safari
Club Int’l v. Jewell (Antelope II), 960 F. Supp. 2d 17, 23
(D.D.C. 2013). Thereafter, the Exotic Wildlife Association
filed suit to invalidate and set aside the Removal Rule. See id.
at 23-24. Following consolidation of these actions, the District
Court upheld the Listing Rule and upheld the Removal Rule
as a “rational response” to the court’s 2009 decision in
Antelope I. Id. at 61, 84. The plaintiffs’ appeal to this court in
Antelope II is being held in abeyance pending resolution of
the present dispute.
10
On October 16, 2013, Friends of Animals filed an action
in the District Court challenging the Service’s administration
of Section 10(a)(1)(A) permitting for the antelope species,
and also seeking to invalidate four Section 10 permits
allowing takes of those species. See Complaint at 30-31,
Friends of Animals v. Ashe (Antelope III), No. 13-CV-01580
(D.D.C. Oct. 16, 2013). This case has also been held in
abeyance pending resolution of the present dispute.
On January 16, 2014, Congress passed – and on January
17, 2014, President Obama signed into law – Section 127,
which provides:
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 September 2,
2005 (70 Fed. Reg. 52310 et seq.) without regard to any
other provision of statute or regulation that applies to
issuance of such rule.
Pub. L. No. 113-76, div. G, tit. I, § 127, 128 Stat. 5, 315-16
(2014). On March 19, 2014, the Service complied with
Section 127 and reinstated the Captive-Bred Exemption. See
Reinstatement Rule, 50 C.F.R. § 17.21(h). Friends of Animals
filed this action on March 5, 2014, alleging that Section 127
was an unconstitutional violation of the separation of powers
between the legislative and judicial branches. See Friends of
Animals v. Jewell, 82 F. Supp. 3d 265, 273 (D.D.C. 2015).
After the Service issued the Reinstatement Rule, Friends of
Animals amended its complaint to add a claim that the
Reinstatement Rule was invalid under the APA because it
violated Section 10(c) of the Act. See id. at 267 & n.1.
The District Court resolved the case on cross-motions for
summary judgment, denying Friends of Animals’ motion and
11
granting judgment for Appellees. Id. at 279. The court
followed the holding of Antelope I that Section 10(c) of the
Act grants Friends of Animals a right to information the
deprivation of which confers Article III standing for its APA
claim. Id. at 271-73. However, the court ruled that Friends of
Animals lacked standing to challenge the constitutionality of
Section 127 because its “informational rights are not
implicated by its constitutional challenge.” Id. at 273.
On the merits, the District Court found no merit in
Friends of Animals’ APA claim that the Service’s
Reinstatement Rule violated Section 10(c) of the Act. Id. at
278-79. The court held that, as a consequence of Section 127,
“Section 10(c) does not apply to the Reinstatement Rule and
the FWS’s actions in promulgating the rule were compelled
by the statute [and] consistent with congressional intent.” Id.
at 279. The District Court further noted that, even if Friends
of Animals had standing to challenge the constitutionality of
Section 127, that claim would fail because Section 127 had
amended existing law prospectively and had not retroactively
changed the result in any particular case. Id. at 278 n.9
(“Section 127 does not establish what the law was at a prior
time or require its application to a case already adjudicated.
Rather, Section 127 directs the FWS to issue the
Reinstatement Rule, thus establishing what the law will be
prospectively.”). This appeal followed.
II. ANALYSIS
We review the District Court’s decision on standing de
novo. In re Endangered Species Act Section 4 Deadline
Litig.—MDL No. 2165, 704 F.3d 972, 976 (D.C. Cir. 2013).
Likewise, we review the District Court’s grant of Appellees’
motions for summary judgment and denial of Friends of
12
Animals’ motion for summary judgment de novo. Defs. of
Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008).
A. Standing
Friends of Animals is “a membership organization that
seeks to free animals from cruelty and exploitation around the
world, and to promote a respectful view of non-human, free
living and domestic animals.” Appellant’s Br. at 1. Friends of
Animals “engages in a variety of advocacy programs in
support of these goals,” and informs its members of its
advocacy work through its magazine, website, and other
published reports. Id. In addition, Friends of Animals
regularly participates in the Act’s Section 10 permitting
process in order to protect threatened and endangered species
under the Act, including the three antelope species. Id. On the
record before us, and under controlling precedent, it is clear
that Friends of Animals has standing to pursue both its
statutory and constitutional claims.
“[T]he requirement that a claimant have ‘standing is an
essential and unchanging part of the case-or-controversy
requirement of Article III.’” Davis v. FEC, 554 U.S. 724, 733
(2008) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992)). The “irreducible constitutional minimum of standing
contains three elements.” Lujan, 504 U.S. at 560. First, the
claimant must have suffered an “injury in fact” – that is, an
invasion of a legally protected interest which is “concrete and
particularized” and “actual or imminent.” Id. (citations
omitted). Second, there must be a causal connection between
the claimant’s injury and the subject of his complaint such
that the injury is “fairly traceable to the challenged action of
the defendant.” Id. (alterations and citation omitted). Third, it
must be “likely” that the injury will be “redressed by a
favorable decision.” Id. at 561 (citation omitted). “The party
13
invoking federal jurisdiction bears the burden of establishing
these elements.” Id.The Supreme Court explained in FEC v. Akins that a
plaintiff “suffers an ‘injury in fact’ when the plaintiff fails to
obtain information which must be publicly disclosed pursuant
to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998); see also
Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449
(1989) (holding that failure to obtain information subject to
disclosure under Federal Advisory Committee Act
“constitutes a sufficiently distinct injury to provide standing
to sue”). Following Akins, this circuit has recognized that “a
denial of access to information can work an ‘injury in fact’ for
standing purposes, at least where a statute (on the claimants’
reading) requires that the information ‘be publicly disclosed’
and there ‘is no reason to doubt their claim that the
information would help them.’” Ethyl Corp. v. EPA, 306 F.3d
1144, 1148 (D.C. Cir. 2002) (quoting Akins, 524 U.S. at 21);
see also Am. Soc’y for Prevention of Cruelty to Animals v.
Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011)
(explaining that “a plaintiff must espouse a view of the law
under which the defendant (or an entity it regulates) is
obligated to disclose certain information that the plaintiff has
a right to obtain”).
Friends of Animals contends that Section 10(c) of the Act
requires the Secretary of the Interior to disclose information
about permitted takes of captive members of the three
antelope species. According to Friends of Animals, Section
127 and the Reinstatement Rule deny Friends of Animals this
information, which Friends of Animals otherwise has a
statutory right to obtain. Friends of Animals thus maintains
that it has informational standing to pursue both its
constitutional and statutory claims. We agree.
14
In pertinent part, Section 10(c) of the Act provides:
The Secretary shall publish notice in the Federal
Register of each application for an exemption or permit
which is made under this section. Each notice shall invite
the submission from interested parties, within thirty days
after the date of the notice, of written data, views, or
arguments with respect to the application . . . .
Information received by the Secretary as a part of any
application shall be available to the public as a matter of
public record at every stage of the proceeding.
16 U.S.C. § 1539(c) (emphases added). Under the language of
Section 10(c), the Secretary of the Interior must disclose
information it receives in connection with any Section 10
permit. See id.; see also Gerber v. Norton, 294 F.3d 173, 179
(D.C. Cir. 2002) (finding that the Fish and Wildlife Service
violated Section 10(c) of the Act by failing to make public
information it had received as part of a permit application).
Thus, Section 10(c) clearly creates a right to information upon
which a claim of informational standing may be predicated.
In enacting Section 127, Congress compelled FWS to
issue the Reinstatement Rule, which eliminates the
applicability of individual Section 10 permitting requirements
that would otherwise have been necessary to engage in
prohibited activities that enhance the propagation or survival
of the three antelope species. As a result, Friends of Animals
is denied information relating to permitted takes of U.S.
captive-bred herds of the three antelope species. Friends of
Animals regularly participates in and requests such
information as part of the Section 10 permitting process, and
was in the process of doing so when Section 127 was enacted.
Friends of Animals claims that the information provided by
Section 10(c) helps it meaningfully participate in the Act’s
15
permitting process, as well as engage in related advocacy
efforts to protect the three antelope species. Given Friends of
Animals’ goals and organizational activities, there is no
reason to doubt Friends of Animals’ standing here.
Citing this court’s decision in Feld Entertainment,
Appellees argue that Section 10(c) cannot provide Friends of
Animals with a basis for informational standing. In Feld
Entertainment, we rejected the plaintiff’s attempt to claim
informational standing to bring suit under the Act’s citizen
suit provision against Feld Entertainment, Inc., which
operates the Ringling Brothers and Barnum & Bailey Circus,
for allegedly “taking” circus elephants in violation of Section
9 of the Act. 659 F.3d at 17, 22-24. Importantly, we noted that
even if the plaintiff’s underlying claim was correct – i.e., that
the defendant’s conduct constituted a prohibited “taking”
under Section 9 of the Act – “nothing in section 9, even under
[the plaintiff’s] view, would entitle plaintiffs to any
information.” Id. at 23. We acknowledged that if the
defendant sought to pursue the disputed conduct, “it would
have to seek a section 10 permit from the Fish and Wildlife
Service, and section 10(c) would then entitle [the plaintiffs] to
obtain the information received by the Service as part of [the
defendant’s] permit application.” Id. But because Section 9,
the statutory basis for the plaintiff’s suit, provided the plaintiff
with no right to information, we found informational standing
lacking. Id. at 22-24.
The present case is clearly distinguishable from Feld
Entertainment. Friends of Animals’ statutory and
constitutional claims directly implicate Section 10’s
disclosure requirement, which as explained, provides Friends
of Animals with a right to information. Having been denied
such information, Friends of Animals has suffered a concrete
and particularized “injury in fact” under Akins. Because
16
Friends of Animals’ injury is “fairly traceable to the
challenged action” of the Federal Appellees, and the alleged
injury will be “redressed by a favorable decision” by this
court, Lujan, 504 U.S. at 560-61 (alterations and citations
omitted), Friends of Animals has standing to pursue its
claims.
B. Friends of Animals’ Constitutional Claim
The United States Constitution “enumerates and
separates the powers of the three branches of Government in
Articles I, II, and III, and it is this ‘very structure’ of the
Constitution that exemplifies the concept of separation of
powers.” Miller v. French, 530 U.S. 327, 341 (2000) (quoting
INS v. Chadha, 462 U.S. 919, 946 (1983)). “Article III of the
Constitution establishes an independent Judiciary, a Third
Branch of Government with the ‘province and duty . . . to say
what the law is’ in particular cases and controversies.” Bank
Markazi v. Peterson, 136 S. Ct. 1310, 1322 (2016) (ellipsis in
original) (quoting Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803). “While the boundaries between the three
branches are not ‘“hermetically” sealed,’ the Constitution
prohibits one branch from encroaching on the central
prerogatives of another.” Miller, 530 U.S. at 341-42 (citations
omitted). Friends of Animals argues that Section 127 is
unconstitutional because it infringes upon the judicial power
of Article III courts in violation of the separation of powers
doctrine. In support of its claim, Friends of Animals relies on
two decisions of the Supreme Court: Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211 (1995), and United States v. Klein,
80 U.S. (13 Wall.) 128 (1871).
In Plaut, several shareholders filed a securities fraud
action seeking damages for alleged violations that occurred in
1983 and 1984. Plaut, 514 U.S. at 213. While the lawsuit was
17
pending, however, the Supreme Court held in Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350(1991), that such action had to be commenced within one year
after the discovery of the facts constituting the violation and
within three years after the violation. Lampf, 501 U.S. at 364.
Applying the statute of limitations announced in Lampf, the
district court in Plaut dismissed the shareholders’ complaint
with prejudice as untimely filed, and the court’s judgment
became final 30 days later. Plaut, 514 U.S. at 214.
Responding to Lampf, and after the dismissal order in Plaut
became final, Congress enacted a statute purporting to
reinstate lawsuits dismissed under the statute of limitations
announced in Lampf that would have been timely under the
prior limitations period. See id. at 214-15.
The Supreme Court in Plaut held that Congress’ revival
of the dismissed actions was an unconstitutional intrusion into
matters within the authority of the judicial branch. Id. at 225.
The Court explained that the legislation at issue was
“retroactive legislation, that is, legislation that prescribes what
the law was at an earlier time, when the act whose effect is
controlled by the legislation occurred . . . . When retroactive
legislation requires its own application in a case already
finally adjudicated, it does no more and no less than ‘reverse a
determination once made, in a particular case.’ Our decisions
. . . have uniformly provided fair warning that such an act
exceeds the powers of Congress.” Id. (citations omitted).
Because a “judicial decision becomes the last word of the
judicial department with regard to a particular case or
controversy, . . . Congress may not declare by retroactive
legislation that the law applicable to that very case was
something other than what the courts said it was.” Id. at 227.
Friends of Animals contends that Section 127 “simply
reverses [the court’s] final judgment in Antelope I and must
18
be found unconstitutional” under Plaut. Appellant’s Br. at 33.
We disagree. Section 127 is not retroactive legislation
because it does not establish what the law was at an earlier
time. Likewise, Section 127 does not apply to a case already
decided and does not overturn the court’s determination in
Antelope I – it simply alters the prospective effect of Section
10 of the Act by exempting U.S. captive-bred herds of the
three antelope species from the Act’s Section 9 prohibitions
going forward.
Congress undoubtedly may change the precedential value
of a decision by passing prospective legislation, which is what
Congress chose to do when it enacted Section 127. Cf.
Bellsouth Corp. v. FCC, 162 F.3d 678, 692 (D.C. Cir. 1998)
(explaining that in Plaut, the Supreme Court drew a
distinction between “final judgments without prospective
effects, which could not be constitutionally revised through
legislation, and final judgments with prospective effects,
whose effects could constitutionally be so revised” (citation
omitted)). Indeed, Friends of Animals concedes that, if
Congress was “unhappy with the result in Antelope I,
Congress could . . . cho[o]se to amend Section 10 to allow for
the promulgation of a new rule that might allow for a broad
take exemption.” Appellant’s Br. at 35. By directing FWS to
reissue the Captive-Bred Exemption “without regard to any
other provision of statute or regulation,” Appropriations Act,
div. G, tit. I, § 127, that is what Congress did here.
In Klein, the plaintiff sued the Government for the
proceeds of property sold during the Civil War. The suit was
filed under a statute granting such a cause of action to
noncombatant confederate landowners who could show proof
of loyalty to the federal government. 80 U.S. (13 Wall.) at
136, 139. The Supreme Court, in an earlier case, had decided
that receipt of a Presidential pardon was sufficient proof of
19
“loyalty” under this law. United States v. Padelford, 76 U.S.
(9 Wall.) 531, 543 (1869). The Court of Claims in Klein
followed that decision and awarded recovery to the plaintiff.
Klein, 80 U.S. (13 Wall.) at 143. While the Government’s
appeal was pending, Congress passed a statute providing that
no pardon could be admitted as proof of loyalty to the federal
government and that acceptance of a pardon, under most
circumstances, was conclusive evidence of disloyalty. Id. at
142-44. The statute at issue in Klein thus directed the Court of
Claims and Supreme Court to find that a claimant who had
accepted a presidential pardon was in fact disloyal and,
therefore, not entitled to land sale proceeds. Id. The newly
enacted statute further directed that on proof of such a pardon
or its acceptance, the Court of Claims and Supreme Court
should dismiss the suit for want of jurisdiction. Id.
On review, the Supreme Court in Klein struck down the
statute, explaining that Congress had no authority to “impair[]
the effect of a pardon,” for the Constitution entrusted the
pardon power “[t]o the executive alone.” Id. at 147. Lacking
authority to impair the pardon power of the Executive,
Congress could not “direct[] the court to be instrumental to
that end.” Id. at 148. In other words, the statute in Klein
infringed on the judicial power because it attempted to direct
the result without altering the legal standards governing the
effect of a pardon – standards Congress was powerless to
prescribe. See id. at 146-48.
In striking down the statute in Klein, the Supreme Court
also expressed doubt about Congress’ authority to “prescribe
rules of decisions to the Judicial Department of the
government in cases pending before it.” Id. at 146. The Court
noted:
20
It is evident . . . that the denial of jurisdiction to this
court, as well as to the Court of Claims, is founded solely
on the application of a rule of decision, in causes
pending, prescribed by Congress. The court has
jurisdiction of the cause to a given point; but when it
ascertains that a certain state of things exists, its
jurisdiction is to cease and it is required to dismiss the
cause for want of jurisdiction.
It seems to us that this is not an exercise of the
acknowledged power of Congress to make exceptions
and prescribe regulations to the appellate power.
Id.
Friends of Animals argues that under Klein, “Section 127
. . . unconstitutionally interferes in two pending cases before
Article III courts, seeking to direct the outcomes in those
cases by ensuring that they are deemed moot.” Appellant’s
Br. at 35 (referring to Antelope II and Antelope III).
According to Friends of Animals, Klein “stand[s] for the
proposition that Congress cannot direct the outcome of a
particular pending case by instructing the courts how to
interpret and apply the existing law to the specific pending
claims.” Id. at 37.
This court has noted that “Klein’s exact meaning is far
from clear.” Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d
1092, 1096 (D.C. Cir. 2001). Similarly, the Supreme Court
has observed that “Klein has been called ‘a deeply puzzling
decision.’” Bank Markazi, 136 S. Ct. at 1323 (citation
omitted). The Supreme Court has explained, however, that
“[w]hatever the precise scope of Klein, . . . later decisions
have made clear that its prohibition does not take hold when
Congress ‘amend[s] applicable law.’” Plaut, 514 U.S. at 218
21
(second alteration in original) (quoting Robertson v. Seattle
Audubon Soc’y, 503 U.S. 429, 441 (1992)). Friends of
Animals acknowledges, as it must, this limitation on the reach
of Klein. See Appellant’s Br. at 37. Indeed, in Bank Markazi
v. Peterson, the Supreme Court, just this term, reaffirmed that
Klein is so limited. See Bank Markazi, 136 S. Ct. at 1323(“More recent decisions, however, have made it clear that
Klein does not inhibit Congress from ‘amend[ing] applicable
law.’” (alteration in original) (quoting Robertson, 503 U.S. at
441)).
On the record before us, we have no trouble in
concluding that Section 127 amended the applicable law and
thus does not run afoul of Klein. Section 127 directed the
Secretary of the Interior to reissue the Captive-Bred
Exemption “without regard to any other provision of statute
or regulation that applies to issuance of such rule.”
Appropriations Act, div. G, tit. I, § 127. By issuing this
legislative directive, Congress made it clear that, with respect
to U.S. captive-bred herds of the three antelope species,
individual permits are no longer required to engage in
activities otherwise prohibited by Section 9 of the Act.
Although the three antelope species remain endangered and
subject to certain requirements under the Act, Congress acted
within its constitutional authority in amending the scope of
Section 10. See Nat’l Coal. to Save Our Mall, 269 F.3d at
1094, 1097 (statute at issue, which applied “[n]otwithstanding
any other provision of law,” did not violate Klein because it
“amend[ed] the applicable substantive law”); see also All. for
the Wild Rockies v. Salazar, 672 F.3d 1170, 1174 (9th Cir.
2012) (dismissing the appellants’ challenge under Klein
where Congress had amended the law by “direct[ing] the
agency to issue the rule ‘without regard to any other provision
of statute or regulation that applies to issuance of such rule’”).
22
Seeking to avoid this conclusion, Friends of Animals
argues that “Section 127 makes no change, not even the most
minor addition or subtraction, to the ESA or to the legal status
of the Three Antelope Species under the ESA.” Appellant’s
Br. at 39. Friends of Animals maintains that “the take
prohibitions of Section 9, and the requirements in Section 10
that must be met to obtain a limited exemption from the take
prohibition remain exactly as they were before Section 127
was enacted.” Id. (emphasis omitted). These contentions are
meritless, for Section 127 obviously changes the reach of
Sections 9 and 10 of the Act. Following the passage of
Section 127 and issuance of the Reinstatement Rule, the
requirements in Section 10 that otherwise must be met to
obtain an exemption from Section 9’s take prohibitions no
longer apply to U.S. Captive-Bred herds of the three antelope
species, even though they apply to other endangered species.
The Congressional enactment easily passes muster under
established law.
C. Friends of Animals’ Statutory Claims
Finally, Friends of Animals contends that the
Reinstatement Rule should be set aside under the APA
because it violates Section 10(c) of the Act for the reasons
articulated by the United States District Court for the District
of Columbia in Antelope I. Appellant’s Br. at 49. This
argument is nothing more than a variation on Friends of
Animals’ claim that Section 127 did not amend the applicable
law. As we have already discussed, Section 127 did amend
the applicable law by directing the Secretary of the Interior to
reissue the Captive-Bred Exemption “without regard to any
other provision of statute or regulation that applies to issuance
of such rule.” Appropriations Act, div. G, tit. I, § 127. The
Secretary fulfilled Congress’ directive by issuing the
23
Reinstatement Rule, which is in compliance with the Act and
does not violate the APA.
III. CONCLUSION
For the foregoing reasons, the judgment of the District
Court is affirmed.
So ordered.
SENTELLE, Senior Circuit Judge, concurring: I write
separately not because I have any deep disagreement with the
majority—indeed, I wholly embrace the majority’s conclusion
and nearly all of its language—but only to express a single
misgiving. As the majority makes plain, “the requirement that
a claimant have ‘standing is an essential and unchanging part of
the case-or-controversy requirement of Article III.’” Maj. Op. at
12 (quoting Davis v. FEC, 554 U.S. 724, 733 (2008) (other
citations and internal quotation marks omitted). I am not
convinced that appellant has carried that burden with respect to
its constitutional, separation-of-powers claim. Rather, as the
district court reasoned, the breach of right for which the Friends
of Animals seek redress is informational. See Friends of
Animals v. Jewell, 82 F. Supp. 3d 265, 273 (D.D.C. 2015). The
alleged constitutional violation does not cause that breach. I
therefore would prefer that we affirmed the district court as to
the constitutional claim on the basis relied upon by that court.
That is, that plaintiffs have not established standing. Plaintiffs
have not alleged that the unconstitutional act caused them harm
or that its redress can be had in this lawsuit.
That said, nonetheless I join entirely the disposition of the
majority. I agree that the majority’s analysis of the
constitutional claim is legally correct. I concur entirely with
everything else in the majority’s opinion.