FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTER FOR BIOLOGICAL

DIVERSITY,

Plaintiff-Appellant,

v.

DAVID BERNHARDT, in his

official capacity as Secretary of

the United States Department of

the Interior; U.S. DEPARTMENT

OF THE INTERIOR,

Defendants-Appellees,

PACIFIC LEGAL FOUNDATION;

ALASKA OUTDOOR COUNCIL;

BIG GAME FOREVER; KURT

WHITEHEAD; JOE LETARTE;

SAFARI CLUB INTERNATIONAL;

NATIONAL RIFLE ASSOCIATION

OF AMERICA, INC.; STATE OF

ALASKA DEPARTMENT OF LAW,

Intervenor-DefendantsAppellees.

No. 18-35629

D.C. No.

3:17-cv-00091-SLG

OPINION
2 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

Appeal from the United States District Court

for the District of Alaska

Sharon L. Gleason, District Judge, Presiding

Argued and Submitted August 5, 2019

Anchorage, Alaska

Filed December 30, 2019

Before: Richard C. Tallman, Sandra S. Ikuta,

and N. Randy Smith, Circuit Judges.

Opinion by Judge Ikuta
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 3

SUMMARY*

Congressional Review Act / Jurisdiction

The panel affirmed in part, and dismissed in part, the

district court’s dismissal of the Center for Biological

Diversity (“CBD”)’s complaint that sought to compel the

Department of the Interior to reinstate the Refuges Rule that

prevented Alaska from applying certain state hunting

regulations on federal wildlife refuges.

The Congressional Review Act (“CRA”) was designed to

give Congress an expedited procedure to review and

disapprove federal regulations. Before a rule can take effect,

the promulgating Federal agency submits a report. After

receiving the agency’s report, Congress has a specified time

period to enact a joint resolution that disapproves the

regulation (the “Disapproval Provision”). Once an agency’s

rule has been disapproved by joint resolution, the agencymay

not reissue the same, or similar, rule unless the new rule is

specifically authorized by a law enacted after the joint

resolution disapproving the original rule (the “Reenactment

Provision”).

The U.S. Fish & Wildlife Services promulgated the

Refuges Rule prohibiting Alaska’s predator-control methods

on national wildlife refuges, along with certain methods of

hunting bears and wolves. Congress passed, and the

President signed, a Joint Resolution disapproving the Refuges

Rule.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

Generally, the panel held that it lacked jurisdiction over

CBD’s statutory claims and concluded that CBD’s

constitutional claims did not allege a plausible basis for relief.

The panel held that because CBD failed to allege an

injury in fact that was more than speculative, it did not have

Article III standing to challenge the Reenactment Provision. 

The panel therefore dismissed CBD’s argument that the

Reenactment Clause violated the nondelegation doctrine.

The panel turned next to CBD’s claim that the

Disapproval Provision and Congress’ Joint Resolution

violated the Take Care Clause of the U.S. Constitution. 

Concerning the CRA’s jurisdiction-stripping-provision,

which on its face barred judicial review of all challenges to

actions under the CRA, including constitutional challenges,

the panel presumed that Congress did not intend to bar

constitutional review because the jurisdiction-strippingprovision did not include any explicit language barring

judicial review of constitutional claims. CBD argued that the

CRA and Joint Resolution violated separation-of-power

principles because they interfered with the Executive

Branch’s duty under the Take Care Clause of the Constitution

by preventing the Department of the Interior from

implementing its constitutional duty to faithfully execute the

laws by properlymanaging the federal wildlife refuge system. 

The panel rejected the argument because Congress properly

enacted the Joint Resolution, thereby validly amending

Interior’s authority to administer national wildlife refuges in

Alaska, and Congress, accordingly, did not prevent the

President from exercising his constitutional duty to faithfully

execute the laws. The panel concluded that because the Joint

Resolution did not violate the Take Care Clause, CBD’s

complaint failed to state a claim that was plausible on its face.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 5

Finally, the panel considered CBD’s statutory claim that

the Refuges Rule could not be submitted in accordance with

CRA’s provision at 5 U.S.C. § 801(d)(1), which specifies

certain deadlines. Joining other circuits, the panel held that

federal courts do not have jurisdiction over statutory claims

that arise under the CRA. The panel held that here where

CBD challenged Congress’s enactment of the Joint

Resolution, and where Congress enacted a joint resolution of

disapproval that was an action under the CRA, there was no

jurisdiction to consider the claim.

COUNSEL

Howard M. Crystal (argued), Center for Biological Diversity,

Washington, D.C.; Collette Adkins, Center for Biological

Diversity, Circle Pines, Minnesota; for Plaintiff-Appellant.

Benjamin Mandel Shultz (argued), Attorney; MichaelS.Raab

and Tara S. Morrissey, Appellate Staff; Bryan Schroder,

United States Attorney; Joseph H. Hunt, Assistant Attorney

General; Civil Division, United States Department of Justice,

Washington, D.C.; for Defendants-Appellees.

David Deerson (argued), James S. Burling, Oliver J. Dunford,

and Jeffrey W. McCoy, Pacific Legal Foundation,

Sacramento, California; Jonathan Wood and Todd F.

Gaziano, Pacific Legal Foundation, Arlington, Virginia;

Zacharia Olson, Yturri Rose LLP, Ontario, Oregon; for

Intervenor-Defendants-Appellees Pacific Legal Foundation,

AlaskaOutdoor Council, BigGame Forever, Kurt Whitehead,

and Joe Letarte.
6 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

Michael T. Jean, National Rifle Association of America,

Fairfax, Virginia; Anna M. Seidman and Jeremy E. Clare,

Safari Club International, Washington, D.C.; for IntervenorDefendants-Appellees Safari Club International and National

Rifle Association of America, Inc.

Cheryl Rawls Brooking and Jessica M. Alloway, Assistant

Attorneys General, Alaska Department of Law, Anchorage,

Alaska, for Intervenor-Defendant-Appellee State of Alaska

Department of Law.

OPINION

IKUTA, Circuit Judge:

Enacted as part of the Contract with America

Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat.

847, the Congressional Review Act (CRA) was designed to

give Congress an expedited procedure to review and

disapprove federal regulations. 5 U.S.C. §§ 801–808. In

2017, Congress used this procedure to order the Department

of the Interior (Interior) to rescind a regulation that prevented

Alaska from applying certain state hunting regulations on

federal wildlife refuges. The Center for Biological Diversity

(CBD) brought this legal action to compel Interior to reinstate

the rule. Because we lack jurisdiction over CBD’s statutory

claims and conclude that CBD’s constitutional claims do not

allege a plausible basis for relief, we affirm the district

court’s dismissal of CBD’s complaint.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 7

I

The CRA assists Congress in discharging its

responsibilities for overseeing federal regulatory agencies. It

provides that “[b]efore a rule can take effect, the Federal

agency promulgating such rule shall submit” a report that

includes “a concise general statement relating to the rule” and

a “proposed effective date.” § 801(a)(1)(A).1 After receiving

the agency’s report, Congress has a specified time period to

enact a joint resolution that disapproves the regulation and

states that “such rule shall have no force or effect.” § 802(a)

(the “Disapproval Provision”). Typically, Congress has 60

days to exercise the Disapproval Provision. Id. But if an

agency submits a rule to Congress during the final 60 days of

a congressional session, or submits the rule when Congress is

not in session, the 60-day clock does not start to run until the

15th day of the subsequent congressional session. 

§ 801(d)(1)–(2)(A) (the “Carryover Provision”).2

1 This requirement that an agency submit its report before its rule can

take effect does not apply to “any rule that establishes, modifies, opens,

closes, or conducts a regulatory program for a commercial, recreational,

or subsistence activity related to hunting, fishing, or camping.” § 808(1). 

Such a rule will “take effect at such time as the Federal agency

promulgating the rule determines.” Id.

2

 Section 801(d)(1)–(2)(A) provides:

(d)(1) In addition to the opportunity for review

otherwise provided under this chapter, in the case of

any rule for which a report was submitted in accordance

with subsection (a)(1)(A) during the period beginning

on the date occurring–

(A) in the case of the Senate, 60 session days, or
8 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

If the House and Senate pass a joint resolution of

disapproval, and the President signs it into law, the agency’s

rule “shall not take effect (or continue).” § 801(b)(1); see

also U.S. Const. art I, § 7, cl. 3. Once an agency’s rule has

been disapproved by joint resolution, the agency may not

reissue the same rule “in substantially the same form,” and

may not issue “a new rule that is substantially the same” as

the disapproved rule “unless the reissued or new rule is

specifically authorized by a law enacted after the date of the

(B) in the case of the House of Representatives,

60 legislative days,

before the date the Congress adjourns a session of

Congress through the date on which the same or

succeeding Congress first convenes its next session,

section 802 shall apply to such rule in the succeeding

session of Congress.

(2)(A) In applying section 802 for purposes of such

additional review, a rule described under paragraph (1)

shall be treated as though–

(i) such rule were published in the Federal Register

(as a rule that shall take effect) on–

(I) in the case of the Senate, the 15th

session day, or

(II) in the case of the House of

Representatives, the 15th legislative

day,

after the succeeding session of Congress first

convenes; and

(ii) a report on such rule were submitted to

Congress under subsection (a)(1) on such date.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 9

joint resolution disapproving the original rule.” 5 U.S.C.

§ 801(b)(2) (the “Reenactment Provision”).

The CRA streamlines Congress’s typical procedure for

enacting legislation. For instance, the CRA limits debate on

a joint resolution “to not more than 10 hours,” § 802(d)(2),

and allows the Senate to take a joint resolution away from a

Senate committee after 20 days and place it on the calendar

for consideration by the full Senate on the vote of

30 Senators, § 802(c). The CRA declares that this accelerated

procedure is “an exercise of the rulemaking power of the

Senate and House of Representatives, respectively,” and

invokes the constitutional authority of Congress to amend its

rules of procedure. § 802(g); see U.S. Const. art I, § 5, cl. 2

(“Each House may determine the Rules of its Proceedings

. . . .”).

As part of its effort to ensure an expedited process, the

CRA provides that “[n]o determination, finding, action, or

omission under this chapter shall be subject to judicial

review.” 5 U.S.C. § 805 (the “Jurisdiction-Stripping

Provision”).

II

This case stems from conflict over the management of

wildlife in national wildlife refuges in Alaska. Congress has

authority under the Property Clause of the Constitution to

“make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United States.” 

U.S. Const. art. IV, § 3, cl. 2. Federal statutes applicable to

the national wildlife refuges at issue in this case include the

National Wildlife Refuge System Administration Act of

1966, Pub. L. No. 89-669, 80 Stat. 926 (codified as amended
10 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

at 16 U.S.C. § 668dd–668ee (1998)), the National Wildlife

Refuge System Improvement Act of 1997, Pub. L. No.

105-57, 111 Stat. 1252 (codified as amended at 16 U.S.C.

§ 668dd–668ee (1998)), and the Alaska National Interest

Lands Conservation Act (ANILCA), Pub. L. No. 96-487, 94

Stat. 2371 (1980) (codified at 16 U.S.C. §§ 3101–3233). 

Each of these statutes authorizes Interior to manage the

federal wildlife refuges for conservation and public use.

States also possess broad powers over fish and wildlife

within their borders. See, e.g., 16 U.S.C. § 668dd(m). 

Alaska’s laws for managing wildlife are applicable in the

national wildlife refuges in the state unless preempted by

federal law. See Kleppe v. New Mexico, 426 U.S. 529,

542–43 (1976); see also 50 C.F.R. § 32.2(d). In 1994, the

Alaska legislature authorized the Board of Game (Board) “to

provide for intensive management programs to restore the

abundance or productivity of identified big game prey

populations as necessary to achieve human consumptive use

goals.” Alaska Stat. § 16.05.255(e) (2014). To that end, the

Board permitted hunters to specifically target big game

predators, like black bears, brown bears, and wolves. See

Alaska Admin. Code tit. 5, §§ 92.110, 92.115, 92.124 (2019). 

Over the years, the Board has expanded its intensive

management program and permitted hunters to engage in a

range of predator-control activities.

Concerned that Alaska’s intensive management program

was “in direct conflict” with the federal mandate for

administering national wildlife refuges, the Fish & Wildlife

Service (FWS) promulgated an expansive new rule that

substantially deviated from the state’s regulations. See

Non-Subsistence Take of Wildlife, and Public Participation

and Closure Procedures, on National Wildlife Refuges in
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 11

Alaska, 81 Fed. Reg. 52248-01, 52252 (Aug. 5, 2016) (the

“Refuges Rule”) (codified at 50 C.F.R. § 36.32(b), repealed

by 82 Fed. Reg. 52009-01(Nov. 9, 2017)). The Refuges Rule

prohibited Alaska’s predator-control methods on national

wildlife refuges, along with certain methods of hunting bears

and wolves. 81 Fed. Reg. at 52252. The Rule effectively

prevented the Board from implementing Alaska’s intensive

management law on federal land. See id.; Alaska Stat.

§ 16.05.255; Alaska Admin. Code tit. 5, §§ 92.106–92.127.

On October 5, 2016, consistent with the CRA, Interior

submitted the Refuges Rule to Congress and the Comptroller

General.3 At the time, less than 60 days remained in the

114th Congress.4 Therefore, the CRA’s Carryover Provision

applied and the 60-day clock would not start running until

the 15th day of the subsequent congressional session. 

§ 801(d)(1)–(2)(A). In February 2017, within the time period

established by the Carryover Provision, a joint resolution

disapproving the Refuges Rule was introduced in the House

of Representatives (“Joint Resolution”). H.R.J. Res. 69,

115th Cong. (2017); see also 5 U.S.C. § 801(d). The House

and Senate passed the Joint Resolution, and the President

3

See 162 Cong. Rec. S6339-04, S6346 (daily ed. Nov. 15, 2016);

162 Cong. Rec. H6160-01, H6169 (daily ed. Nov. 14, 2016); GAO

Federal Rules Summary Listing, U.S. GOV’T ACCOUNTABILITY OFF.,

http://www.gao.gov/fedrules/186189 (last visited Oct. 22, 2019).

4 After October 5, 2016, less than 60 session days (Senate) and

less than 60 legislative days (House of Representatives) remained

before the 114th Congress adjourned on January 3, 2017. See

Past Days in Session of the U.S. Congress, CONGRESS.GOV,

https://www.congress.gov/past-days-in-session (under “Senate,” click the

link next to 114th, 2nd Session; under “House,” click the link next to

114th, 2nd Session) (last visited Oct. 22, 2019).
12 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

signed the Joint Resolution into law on April 3, 2017. Pub.

L. No. 115-20, 131 Stat. 86 (2017).

The Joint Resolution states:

Providing for congressional disapproval under

chapter 8 of title 5, United States Code, of the

final rule of the Department of the Interior

relating to “Non-Subsistence Take of

Wildlife, and Public Participation and Closure

Procedures, on National Wildlife Refuges in

Alaska”.

Resolved by the Senate and House of

Representatives of the United States of

America in Congress assembled, That

Congress disapproves the rule submitted by

the Department of the Interior relating to

“Non-Subsistence Take of Wildlife, and

Public Participation and Closure Procedures,

on National Wildlife Refuges in Alaska”

(81 Fed. Reg. 52247 (August 5, 2016)), and

such rule shall have no force or effect.

Id.

Following the enactment of the Joint Resolution, Interior

promulgated an administrative rule rescinding the Refuges

Rule and reverting “to the text of the regulations in effect

immediately prior to the” Refuges Rule. Effectuating

Congressional Nullification of the Non-Subsistence Take of

Wildlife, and Public Participation and Closure Procedures, on

National Wildlife Refuges in Alaska Under the Congressional

Review Act, 82 Fed. Reg. 52009-01, 52009 (Nov. 9, 2017).
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 13

In April 2017, CBD sued Interior in district court, seeking

to reinstate the Refuges Rule.5 Five months later, CBD filed

an amended complaint in which it alleged (1) the Joint

Resolution and the CRA violate the Take Care Clause of the

Constitution; (2) the CRA’s Reenactment Provision suffered

from unconstitutional vagueness (on appeal, CBD clarified

that it was actually asserting a violation of the nondelegation

doctrine); and (3) Interior acted ultra vires in adhering to the

Joint Resolution and rescinding the Refuges Rule. The

district court granted Interior’s motion to dismiss, holding

that CBD failed to establish Article III standing and failed to

state a claim. CBD timely appealed. We review the district

court’s order de novo. L.A. Lakers, Inc. v. Fed. Ins. Co.,

869 F.3d 795, 800 (9th Cir. 2017).

III

We begin by considering the government’s argument that

we lack jurisdiction to consider CBD’s claim that the

Reenactment Provision violates the nondelegation doctrine,

the rule that Congress cannot delegate its legislative powers

unless it “lay[s] down by legislative act an intelligible

principle to which the person or body authorized to [act] is

directed to conform.” J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928). The government argues

that CBD lacks standing to raise this claim. We review

jurisdictional questions de novo. In re Gugliuzza, 852 F.3d

884, 889 (9th Cir. 2017).

5 The district court permitted several parties to intervene, including

the Pacific Legal Foundation, Alaska Outdoor Council, Big Game

Forever, Kurt Whitehead, Joe Letarte, Safari Club International, the

National Rifle Association of America, and the State of Alaska.
14 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

“To establish standing, a plaintiff must present an injury

that is concrete, particularized, and actual or imminent; fairly

traceable to the defendant’s challenged action; and

redressable by a favorable ruling.” Horne v. Flores, 557 U.S.

433, 445 (2009). Conjectural, hypothetical, or speculative

injuries, such as “[a]llegations of possible future injury,” do

not suffice. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990);

see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992). Rather, “[a] threatened injury must be certainly

impending to constitute injury in fact.” Whitmore, 495 U.S.

at 158 (internal quotation marks omitted) (quoting Babbitt v.

United Farm Workers Nat’l Union, 442 U.S. 289, 298

(1979));see also Clapper v. Amnesty Int’l USA, 568 U.S. 398,

409 (2013). A plaintiff must establish standing for every

claim it wishes to challenge, even where a plaintiff raises the

same legal challenge to multiple sections of the same statute. 

Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886, 892

(9th Cir. 2007).

Here, CBD’s challenge to the Reenactment Provision is

legally distinct from its challenge to the Disapproval

Provision and the Joint Resolution. Therefore, CBD must

separately establish standing for its argument that the

Reenactment Provision violates the nondelegation doctrine. 

See id. CBD argues it has adequately demonstrated standing

because the Reenactment Provision deprives Interior of the

ability to reissue the Refuges Rule “in substantially the same

form,” or to issue a new rule that is substantially the same as

the Refuges Rule. 5 U.S.C. § 801(b)(2). As a result, CBD

claims, the Reenactment Provision precludes Interior from

protecting wildlife that CBD’s members enjoy observing in

the national wildlife refuges in Alaska. Accordingly, CBD’s

members have suffered a cognizable injury in fact due to the

operation of the Reenactment Provision.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 15

This argument fails because CBD’s alleged injury rests on

a speculative chain of future possibilities, which do not

satisfy the requirements of Article III. Whitmore, 495 U.S. at

157–58. “At the pleading stage, general factual allegations of

injury resulting from the defendant’s conduct may suffice,”

Lujan, 504 U.S. at 561, but such allegations must “permit the

court to infer more than the mere possibility of [injury],”

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). CBD’s alleged

injury here is premised on the assumption that Interior would

reissue the Refuges Rule or a substantially similar rule if a

court ruled that the Reenactment Provision were invalid. But

CBD alleged no facts raising a plausible inference that

Interior would take such steps, and thus has not “nudged” its

claim of injury “across the line from conceivable to

plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007). Because CBD has failed to allege an injury in

fact that is more than speculative, it does not have standing to

challenge the Reenactment Provision. We therefore dismiss

CBD’s argument that the Reenactment Clause violates the

nondelegation doctrine.

IV

We next turn to CBD’s claim that the Disapproval

Provision and the Joint Resolution violate the Take Care

Clause.

A

We first consider whether the CRA’s JurisdictionStripping Provision bars review of this constitutional claim. 

The Jurisdiction-Stripping Provision provides that “[n]o

determination, finding, action, or omission under this chapter

shall be subject to judicial review.” 5 U.S.C. § 805. On its
16 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

face, this language bars judicial review of all challenges to

actions under the CRA, including constitutional challenges. 

The Supreme Court has held, however, that when we construe

“a statute that purports to deny any judicial forum for a

colorable constitutional claim,” we apply a heightened

standard. Elgin v. Dep’t of Treasury, 567 U.S. 1, 9 (2012)

(internal quotation marks omitted) (quoting Webster v. Doe,

486 U.S. 592, 603 (1988)). Under the applicable canon of

statutory construction, “where Congress intends to preclude

judicial review of constitutional claims its intent to do so

must be clear.” Webster, 486 U.S. at 603. In the absence of

an explicit statutory provision that “bars judicial

consideration of appellee’s constitutional claims,” Johnson v.

Robison, 415 U.S. 361, 367 (1974) (emphasis added), we

should conclude that Congress did not intend to “preclude

consideration of colorable constitutional claims arising out of

. . . actions” taken under a federal statute, Webster, 486 U.S.

at 603. This rule of statutory construction is necessary to

avoid “the serious constitutional question that would arise if

we construed [a statute] to deny a judicial forum for

constitutional claims.” Bowen v. Mich. Acad. of Family

Physicians, 476 U.S. 667, 681 n.12 (1986) (internal quotation

marks omitted) (quoting Weinberger v. Salfi, 422 U.S. 749,

762 (1975)). Because “[i]t is presumable that Congress

legislates with knowledge of [the Supreme Court’s] basic

rules of statutory construction,” McNary v. Haitian Refugee

Ctr., Inc., 498 U.S. 479, 496 (1991), we may presume that

Congress will use specific language if it intends to foreclose

judicial review of constitutional claims. Here, the

Jurisdiction-Stripping Provision does not include any explicit

language barring judicial review of constitutional claims. 

Therefore, we presume that Congress did not intend to bar

such review.
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 17

B

Because we are not barred from considering CBD’s

constitutional claim, we turn to CBD’s argument that the

CRA and Joint Resolution violate separation-of-powers

principles because they interfere with the Executive Branch’s

duty under the Take Care Clause of the Constitution. See

U.S. Const. art II, § 3 (“[The President] shall take Care that

the Laws be faithfully executed . . . .”). As the Supreme

Court has explained in analyzing similar claims, a court’s

understanding of “the reach and purpose” of the constitutional

provision at issue (here, the Take Care Clause) must be

informed by “[t]he separation-of-powers doctrine, and the

history that influenced its design.” Boumediene v. Bush,

553 U.S. 723, 746 (2008).

Congress delegated its authority under the Property

Clause to manage the federal wildlife refuges in Alaska to the

Executive Branch (i.e., Interior) pursuant to the National

Wildlife Refuge System Administration Act, the National

Wildlife Refuge System Improvement Act, and ANILCA. 

According to CBD, Congress did not amend those acts

through the constitutionally required process of bicameralism

and presentment, and therefore Interior retains all the

authority delegated by Congress in those acts. By enacting

the Joint Resolution, CBD contends, Congress required

Interior to revoke a rule that Interior deemed necessary for

managing the federal wildlife refuge system. Therefore, CBD

argues, the Joint Resolution prevents Interior from

implementing its constitutional duty to faithfully execute the

laws.

This argument fails. When Congress enacts legislation

that directs an agency to issue a particular rule, “Congress has
18 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

amended the law.” Alliance for the Wild Rockies v. Salazar,

672 F.3d 1170, 1174 (9th Cir. 2012). In Alliance for the Wild

Rockies, Congress enacted legislation ordering the FWS to

reissue a rule that had been struck down by a district court on

the ground that it violated the Endangered Species Act. Id. at

1173–74. We held that the legislation effectively amended

the Endangered Species Act. Id. at 1175. Moreover, we held

that because the legislation changed the substantive law, it did

“not violate the constitutional separation of powers” even

though it “directed an agency to take particular action

challenged in pending litigation by changing the law

applicable to that case.” Id. at 1174. For the same reason,

validly enacted legislation that requires an agency to take a

specified action does not impinge on the Take Care Clause or

violate separation-of-powers principles.

Here, Congress complied with the process of

bicameralism and presentment in enacting the Joint

Resolution,6because the Joint Resolution passed both houses

of Congress and was signed by the President into law. By

enacting the Joint Resolution, Congress amended the

substantive environmental law and deprived the Refuges Rule

of any force or effect. Accordingly, the Joint Resolution is

enforceable as a change to substantive law, even though it did

not state that it constituted an amendment to the National

Wildlife Refuge System Administration Act, the National

Wildlife Refuge System Improvement Act, or ANILCA.

6 Article I of the Constitution vests the legislative power in Congress

and prescribes the process by which a bill becomes a law. U.S. Const.

art. I, §§ 1, 7. Under the Presentment Clause, the House of

Representatives and the Senate must each pass a bill, and then present it

to the President, who may then sign the bill into law. U.S. Const. art. I,

§ 7, cl. 2. This process is referred to as bicameralism and presentment. 

See INS v. Chadha, 462 U.S. 919, 951 (1983).
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 19

Because Congress properly enacted the Joint Resolution,

and therefore validly amended Interior’s authority to

administer national wildlife refuges in Alaska, Congress did

not prevent the President from exercising his constitutional

duty to faithfully execute the laws. Indeed, the President

now has the constitutional obligation to execute the Joint

Resolution. U.S. Const. art II, § 3; see also Alliance for the

Wild Rockies, 672 F.3d at 1174. Because the Joint Resolution

does not violate the Take Care Clause, CBD’s complaint fails

to state a claim that is plausible on its face.

V

Finally we consider CBD’s statutory claim. CBD claims

that § 801(d)(1) (which allows Congress to disapprove of

a rule introduced in the previous Congress) applies only

to rules that were submitted “in accordance with”

§ 801(a)(1)(A) (which provides that “[b]efore a rule can take

effect, the Federal agency promulgating such rule” must

submit a specified report to Congress). According to CBD,

the Refuges Rule could not be submitted “in accordance

with” § 801(a)(1)(A), because that section requires a federal

agency to submit a report to Congress “[b]efore a rule can

take effect,” but the Refuges Rule took effect on September

6, 2016, the date specified by Interior, nearly a month before

the report was submitted to Congress. See Refuges Rule,

81 Fed. Reg. at 52248; 5 U.S.C. § 808 (providing that a rule

relating to a “regulatory program” for hunting “shall take

effect at such time as the Federal agency promulgating the

rule determines”). Because the Refuges Rule was not eligible

for disapproval in the new session of Congress, CBD argues,

the Joint Resolution was invalid and it did not authorize

Interior to rescind the Refuges Rule. Therefore, CBD
20 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

concludes, Interior acted ultra viresin rescinding the Refuges

Rule pursuant to the (invalid) Joint Resolution.

Because this claim is based on the statute, we first

consider whether the CRA’s Jurisdiction-Stripping Provision

bars judicial review. Congress is generally free to limit the

jurisdiction of federal courts. United States v. Hudson,

7 Cranch 32, 33 (1812). But in order to do so, Congress must

enact a statute that provides “clear and convincing evidence

that Congress intended to deny” access to judicial review. 

Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc.,

502 U.S. 32, 44 (1991). A statute provides such clear and

convincing evidence, “and the presumption favoring judicial

review [is] overcome, whenever the congressional intent to

preclude judicial review is ‘fairly discernible in the statutory

scheme.’” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351

(1984) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150, 157 (1970)).

Here, Congress’s intent to preclude judicial review is

“fairly discernible.” Pursuant to the Jurisdiction-Stripping

Provision, we are deprived of jurisdiction to review any claim

challenging a “determination, finding, action, or omission”

under the CRA. 5 U.S.C. § 805. In reaching this conclusion,

we join our sister circuits which have likewise held that

federal courts do not have jurisdiction over statutory claims

that arise under the CRA. See Montanans For Multiple Use

v. Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009); Via

Christi Reg’l Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259, 1271
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 21

n.11 (10th Cir. 2007), abrogated on other grounds by Azar v.

Allina Health Servs., 139 S. Ct. 1804 (2019).7

Here, CBD challenges Congress’s enactment of the Joint

Resolution. Because enacting a joint resolution of

disapproval is an action under the CRA, we lack jurisdiction

to consider this claim.

CBD nevertheless argues that because the Refuges Rule

was not eligible for disapproval in the new session of

Congress, the Joint Resolution was not enacted “under” the

CRA and therefore is not a “determination, finding, action, or

omission under this chapter” for purposes of § 805. In

making this argument, CBD relies on In re Border

Infrastructure Environmental Litigation, which considered a

jurisdictional bar imposed by the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA). 915 F.3d 1213,

1219–20 (9th Cir. 2019) (BIEL). The jurisdictional bar

provided that “[t]he district courts of the United States shall

have exclusive jurisdiction to hear all causes or claims arising

from any action undertaken, or any decision made, by the

Secretary of Homeland Security pursuant to” a statutory

waiver provision giving the Secretary authority to waive

certain legal requirements. Id. at 1220 (quoting IIRIRA

§ 102(c)(2)(A)). We held that a plaintiff’s claim “arises

from” the waiver provision, and is thus subject to the

jurisdictional bar, only when the plaintiff challenges a waiver

7 CBD argues that Liesegang v. Sec’y of Veterans Affairs held that

courts have jurisdiction to consider statutory challenges to the CRA. 

312 F.3d 1368, 1373 (Fed. Cir. 2002), amended on reh’g in part,

65 F. App’x 717 (Fed. Cir. 2003). We disagree; the plaintiffs in

Liesegang did not raise this issue, and the Federal Circuit thus had no

occasion to consider it. Id.
22 CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT

decision by the agency, not when the plaintiff challenges

agency action authorized by some other part of the statute. 

Id. at 1220–21.

CBD contends that (like in BIEL) a plaintiff’s claim is

subject to CRA’s Jurisdiction-Stripping Provision only if the

plaintiff challenges an action under CRA. Because CBD is

challenging Interior’s rescission of the Refuges Rule and not

any action under CRA, CBD argues, its claim is not barred. 

We disagree. CBD challenges Interior’s rescission of the

Refuges Rule solely on the ground that Congress did not

validly enact the Joint Resolution. Therefore, CBD’s claim

necessarily involves a challenge to a congressional

“determination, finding, action or omission” under the CRA,

and as such is subject to the Jurisdiction-Stripping Provision. 

Accordingly, we lack authority to consider this claim. 

5 U.S.C. § 805.8

***

In short, Congress’s efforts to exercise oversight of

federal administrative agencies by means of the CRA are

consistent with the “structure of this government, and the

distribution of this mass of power among its constituent

parts.” The Federalist No. 47, p. 321 (James Madison)

(Easton Press 1979). Congress can therefore use the

streamlined procedure in the CRA to disapprove federal

8 Because we lack jurisdiction to review CBD’s statutory claim, we

do not reach the question whether CBD’s claim is non-justiciable under

the Rules Clause, U.S. Const. art. I, § 5, cl. 2. See Consejo de Desarrollo

Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1172 (9th

Cir. 2007) (interpreting the Rules Clause and concluding that “the

Constitution textually commits the question oflegislative procedural rules

to Congress”).
CENTER FOR BIOLOGICAL DIVERSITY V. BERNHARDT 23

regulations without offending the Take Care Clause, and

Congress has validly deprived us of jurisdiction to consider

claims that it violated the CRA’s statutory requirements.

AFFIRMED IN PART; DISMISSED IN PART.9

9

 Each party shall bear its own costs.