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Alliance for the Wild Rockies v. Salazar

ELR Citation: 41 ELR 20252
Nos. Nos. CV 11-70-M-DWM, -71-M-DWM, (D. Mont., 08/03/2011)

A district court upheld the constitutionality of an appropriations rider that reinstated an FWS rule that removed ESA protections for the Northern Rocky Mountain gray wolf in all areas outside of Wyoming. The court previously held that the rule violated the ESA because it protected a listed species only across part of its range. While an appeal of that decision was pending, the U.S. Congress passed and the president signed an appropriations bill that contained a rider reinstating the delisting rule. The Ninth Circuit has held that so long as Congress uses the words "without regard to any other provision of statute or regulation that applies," or something similar, then the doctrine of constitutional avoidance requires the court to impose a saving interpretation provided the statute can be fairly interpreted to render it constitutional. Moreover, when two possible interpretations of a statute exist, one unconstitutional and the other valid, a court must adopt the one that saves the act. Here, the rider states the delisting rule should be reissued "without regard to any other provision of statute or regulation." So, while the court previously found the 2009 rule illegal, under Ninth Circuit law a constitutional reading of Congress' directive to reissue the rule is possible. Under this view, Congress changed the law and precluded judicial review only with respect to the reissuance of the 2009 rule. No other part of the ESA or its application has been altered, changed, or amended. The court noted that if it were not constrained by Ninth Circuit precedent, it would have held the rider unconstitutional because it violates the Separation of Powers doctrine.