Friends of Animals v. Sally Jewell

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.

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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

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(“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:

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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.

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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

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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.

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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-

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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.

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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

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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

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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

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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.

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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

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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

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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

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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.