FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLIANCE FOR THE WILD ROCKIES; 

FRIENDS OF THE CLEARWATER;

WILDEARTH GUARDIANS,

Plaintiffs-Appellants,

and

CENTER FOR BIOLOGICAL DIVERSITY;

CASCADIA WILDLANDS,

Plaintiffs,

v. 

KEN SALAZAR, in his official

capacity as United States Secretary

of the Interior; ROWAN GOULD, in

his official capacity as Acting

Director of the United States Fish

and Wildlife Service; UNITED

STATES FISH AND WILDLIFE SERVICE,

Defendants-Appellees,

and 

3065
IDAHO FARM BUREAU FEDERATION; 

MONTANA FARM BUREAU No. 11-35661

FEDERATION; MOUNTAIN STATES D.C. Nos.

LEGAL FOUNDATION; NATIONAL 9:11-cv-00070-  RIFLE ASSOCIATION OF AMERICA; DWM

SAFARI CLUB INTERNATIONAL; 9:11-cv-00071-

WILDLIFE CONSERVATION GROUPS, DWM

Intervenors. 

CENTER FOR BIOLOGICAL DIVERSITY; 

CASCADIA WILDLANDS; WESTERN

WATERSHEDS PROJECT,

Plaintiffs-Appellants,

and

ALLIANCE FOR THE WILD ROCKIES;

FRIENDS OF THE CLEARWATER;

WILDEARTH GUARDIANS,

Plaintiffs, 

v.

KEN SALAZAR, in his official

capacity as United States Secretary

of the Interior; ROWAN GOULD, in

his official capacity as Acting

Director of the United States Fish

and Wildlife Service; UNITED

STATES FISH AND WILDLIFE SERVICE,

Defendants-Appellees, 

3066 ALLIANCE FOR THE WILD ROCKIES v. SALAZAR


and No. 11-35670

IDAHO FARM BUREAU FEDERATION; D.C. Nos.

MONTANA FARM BUREAU 9:11-cv-00070-

FEDERATION; MOUNTAIN STATES  DWM

LEGAL FOUNDATION; NATIONAL 9:11-cv-00071-

RIFLE ASSOCIATION OF AMERICA; DWM

SAFARI CLUB INTERNATIONAL; OPINION

WILDLIFE CONSERVATION GROUPS,

Intervenors. 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

November 8, 2011—Pasadena, California

Filed March 14, 2012

Before: Mary M. Schroeder, Stephen Reinhardt, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Schroeder

ALLIANCE FOR THE WILD ROCKIES v. SALAZAR 3067
COUNSEL

James J. Tutchton, Centennial, Colorado, and Amy Rae

Atwood, Portland Oregon, for the plaintiffs-appellants Alliance for the Wild Rockies, et al.

David C. Shilton, Department of Justice, Washington, D.C.,

for the the defendants-appellees Ken Salazar, Secretary of the

Interior, et al.

Steven J. Lechner, Lakewood, Colorado, for intervenorsappellees Safari Club International, et al.

OPINION

SCHROEDER, Circuit Judge:

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

ALLIANCE FOR THE WILD ROCKIES v. SALAZAR 3069
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.

I. BACKGROUND

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 Wildlife 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

3070 ALLIANCE FOR THE WILD ROCKIES v. SALAZAR
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 of Wyoming in Case Numbers 09–CV–118J and 09–CV–

138J on November 18, 2010 [involving Wyoming’s

management plan for gray wolves].

Id.

On May 5, 2011, FWS complied with Section 1713 by reissuing the 2009 Rule. 50 C.F.R. Part 17, 76 Fed. Reg. 25,590.

That same day, plaintiffs filed this suit challenging the constitutionality of Section 1713 under the separation of powers

doctrine, and relying on United States v. Klein, 80 U.S. 128

(1871). On August 3, 2011, the district court granted summary judgment to the government defendants. Alliance for the

Wild Rockies, et al. v. Salazar, 800 F. Supp. 2d 1123 (D.

Mont. 2011). We review the legal ruling de novo and affirm.

II. ANALYSIS

The cornerstones of plaintiffs’ separation of powers challenge were laid in the mid-19th century when the Supreme

Court decided United States v. Klein, 80 U.S. 128 (1871) and

ALLIANCE FOR THE WILD ROCKIES v. SALAZAR 3071
Pennsylvania v. The Wheeling and Belmont Bridge Co., 59

U.S. 421 (1855).

In Klein, the Supreme Court struck down an act of Congress that dictated the result in pending litigation. The plaintiff in Klein 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. The Supreme Court, in an earlier case, had

decided that receipt of a Presidential pardon was sufficient

proof of “loyalty” under this law. The Court of Claims in

Klein followed that decision and awarded recovery. 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. The statute thus directed the Supreme Court and the

Court of Claims to find that a claimant who had accepted a

Presidential pardon was in fact disloyal and, therefore, not

entitled to land sale proceeds. The newly enacted statute further directed the Supreme Court to dismiss any case, for want

of jurisdiction, if the claimant had prevailed upon proof of

loyalty by Presidential pardon.

In striking down the statute, the Supreme Court in Klein

explained that the effect of the new law was to deny jurisdiction to the Supreme Court and Court of Claims in pending

cases “solely on the application of a rule of decision, in causes

pending, prescribed by Congress.” Id. at 146. This, the Court

held, Congress could not do: “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. Because Congress had “prescribe[d] a rule for the decision

of a cause in a particular way,” Congress “passed the limit

which separates the legislative from the judicial power,” and

the provision was declared unconstitutional. Id. at 146-47.

3072 ALLIANCE FOR THE WILD ROCKIES v. SALAZAR
The Court in Klein had to distinguish Wheeling Bridge.

There, the Court had originally held that a bridge was an

obstruction to navigation. 59 U.S. at 429. Intervening legislation, however, made the bridge a post-road for passage of the

United States mail and forbade users of the river from interfering with the bridge. The Court concluded in Wheeling

Bridge that this new statute had changed the earlier law that

the bridge was obstructing navigation. “[A]lthough [the

bridge] still may be an obstruction in fact, [it] is not so in the

contemplation of law.” Id. at 430. The Court in Klein held

Wheeling Bridge differed from Klein in a critically important

aspect: Congress had changed the law, not told the Court that

it should decide the case differently under the same law. “No

arbitrary rule of decision was prescribed in [Wheeling

Bridge], but the court was left to apply its ordinary rules to

the new circumstances created by the act. In [Klein] no new

circumstances have been created by legislation.” Klein, 80

U.S. at 146-47. 

Klein, however, has remained an isolated Supreme Court

application of the separation of powers doctrine to strike

down a statute that dictated the result in pending litigation.

This court relied on Klein in Seattle Audubon Society v. Robertson, 914 F.2d 1311 (9th Cir. 1990), rev’d, Robertson v.

Seattle Audubon Society, 503 U.S. 429 (1992) to strike down

a statute enacted to affect pending environmental litigation

aimed at restricting logging and protecting the endangered

spotted owl. While the litigation was still ongoing, and after

the environmental groups had won a preliminary injunction

on the ground that there had been inadequate study of the logging’s environmental effects, Congress intervened and passed

section 318 of the Department of the Interior and Related

Agencies Appropriations Act for Fiscal Year 1990, Pub. L.

No. 101-121, 103 Stat. 701, 745-50 (1989) (“section 318”).

Section 318 allowed logging in parts of the disputed spotted

owl habitat. Section 318(b)(6)(A) specified how the environmental concerns in the pending litigation were to be satisfied

and barred judicial review. It provided: 

ALLIANCE FOR THE WILD ROCKIES v. SALAZAR 3073
Without passing on the legal and factual adequacy

of the Final Supplement to the Environmental

Impact Statement for an Amendment to the Pacific

Northwest Regional Guide-Spotted Owl Guidelines

and the accompanying Record of Decision issued by

the Forest Service on December 12, 1988 or the

December 22, 1987 agreement between the Bureau

of Land Management and the Oregon Department of

Fish and Wildlife for management of the spotted

owl, the Congress hereby determines and directs that

management of areas according to subsections (b)(3)

and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land

Management lands in western Oregon known to contain northern spotted owls is adequate consideration

for the purpose of meeting the statutory requirements

that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale

Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson,

Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al.,

v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The

guidelines adopted by subsections (b)(3) and (b)(5)

of this section shall not be subject to judicial review

by any court of the United States.

Our court held that section 318 violated the rule in Klein in

that it directed the court “to reach a specific result and make

certain factual findings under existing law in connection with

two cases pending in federal court.” 914 F.2d at 1316. We

noted that, although subsections (b)(2), (b)(3), and (b)(5)

added additional requirements, the statute did not by its plain

language repeal or amend the environmental laws underlying

the litigation. Id.

The Supreme Court, however, told us the error of our ways.

Robertson, 503 U.S. 429. The Court held that section 318

3074 ALLIANCE FOR THE WILD ROCKIES v. SALAZAR
amended the law because subsections (b)(3) and (b)(5)

replaced the legal standards underlying the old growth forest

litigation. Id. at 437. The Court held that the rule of Tennessee

Valley Authority, requiring repeal of a law to be explicit, did

not apply because section 318 did not repeal, but “amended”

or changed the environmental laws applicable to a specific

case and therefore did not violate the constitutional prerogative of the courts. Id. at 440 (citing TVA v. Hill, 437 U.S. 153,

190 (1978)).

[1] Here, as in Robertson, Congress has directed an agency

to take particular action challenged in pending litigation by

changing the law applicable to that case. In Robertson, Congress replaced the environmental laws applicable to the spotted owl litigation with new provisions and effectively directed

the agency to comply with the new provisions. Here, Congress has directed the agency to issue the rule “without regard

to any other provision of statute or regulation that applies to

issuance of such rule.” This court has held that, when Congress so directs an agency action, with similar language, Congress has amended the law. Consejo de Desarollo Economico,

Mexicali v. United States, 482 F.3d 1157, 1169 (9th Cir.

2007) (“[W]hen Congress has directed immediate implementation ‘notwithstanding any other provision of law,’ we have

construed the legislation to exempt the affected project from

the reach of environmental statutes which would delay implementation.”). In Consejo, Congress directed the immediate

commencement of a project to line a canal “notwithstanding

any other provision of law.” We relied upon our earlier decision in Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989)

which upheld a statute that exempted a project from environmental laws. We said in Consejo that, like the legislation

underpinning Stop H-3, “the 2006 Act does not direct us to

make any findings or to make any particular application of

law to facts. Rather, the legislation changes the substantive

law governing pre-conditions to commencement of the Lining

Project. As such, it does not violate the constitutional separation of powers.” Id. at 1170; see also Apache Survival Coal.

ALLIANCE FOR THE WILD ROCKIES v. SALAZAR 3075
v. United States, 21 F.3d 895, 902 (9th Cir. 1994) (“[L]ike in

Robertson, the statute substituted preexisting legal standards

that governed a particular project, in this case ESA and

NEPA, with the new standards . . . .”). We must reach the

same result here. 

[2] Appellants’ arguments that Section 1713 is a repeal

rather than an amendment must fail for a similar reason. Congress did not repeal any part of the ESA. Rather, Congress

effectively provided that no statute, and this must include the

ESA, would apply to the 2009 rule. Congress thus amended

the law applicable to the agency action.

Appellants also contend that the meaning and effect of the

2009 Rule as reissued under Section 1713 are unclear, and

that ambiguity prevents the court from finding an amendment.

We cannot agree. The meaning and intended effect of Section

1713 are perfectly clear. The partial delisting was to take

effect within 60 days, with no court review or interference. 

[3] Section 1713’s bar to judicial review does not remove

it from the broad safe harbor recognized in Robertson. The

bar has the same purpose and effect as the statutory language

in Consejo that directed agency action “without delay” and

“notwithstanding any other provision of law.” See 482 F.3d at

1168-69. As we stated in Consejo, particular language “is not

dispositive.” Id. There are no “magic words” that can sweep

aside constitutional concerns. See id. Here, as in Consejo,

however, it is clear that Congress intended to amend the law

so as to avoid the usual course of administrative proceedings

that include judicial review; otherwise, “it would have been

unnecessary for Congress to act at all.” Id. at 1169. The D.C.

Circuit has reached the same conclusion when dealing with a

statute that also stated, expressly, that an agency action “shall

not be subject to judicial review.” Nat’l Coal. to Save Our

Mall v. Norton, 269 F.3d 1092, 1095 (D.C. Cir. 2001). In

National Coalition, the court held that the preclusion of

review tracked language elsewhere in the statute that the proj3076 ALLIANCE FOR THE WILD ROCKIES v. SALAZAR
ect at issue “be ‘constructed expeditiously’ ” and, therefore,

“demonstrate[d] Congress’s clear intent to go ahead” with the

project “regardless of the . . . relation to pre-existing general

legislation.” Id. We agree with the D.C. Circuit that preclusion of judicial review indicates Congressional intent to

change the law applicable to the project.

Section 1713 could be read to bar judicial review of even

its own constitutionality. Such a construction would, of

course, raise serious questions concerning the constitutionality of Section 1713. See Webster v. Doe, 486 U.S. 592, 603

(1988); Johnson v. Robison, 415 U.S. 361, 366 (1974). The

government has disavowed this interpretation before the district court and this court. We reject any such interpretation. 

[4] Finally, we observe that while Section 1713 bars judicial review of the reissuance of the 2009 Rule, the 2009 Rule

does provide standards by which the agency is to evaluate the

continuing viability of wolves in Montana and Idaho. See,

e.g., 74 Fed. Reg. 15,123 at 15,186. Review of any regulations issued pursuant to the Rule or of agency compliance

with the standards, does not appear to be restricted. Section

1713 itself, however, ordering the Rule to issue without

regard to the laws that might otherwise apply, is entitled to be

enforced. 

III. CONCLUSION 

For the reasons given above, the decision of the district

court is AFFIRMED and the motion for an injunction pending appeal is DENIED as moot.

ALLIANCE FOR THE WILD ROCKIES v. SALAZAR 3077