Anchorage Alaska State Parks

PLF’s motion to intervene in CRA case granted

Last week, Pacific Legal Foundation’s motion to intervene in a lawsuit over the use of the Congressional Review Act was granted. PLF and its clients asked to intervene in a suit brought by the Center for Biological Diversity (CBD), which challenges Congress and the president’s authority to invalidate bureaucrat-created regulations.

On July 28, 2017, Judge Sedwick granted PLF’s motion to intervene, which allows PLF to participate in all aspects of CBD’s lawsuit, and has allowed the intervening parties to submit briefs in support of the government’s motion to dismiss.

At issue in this case is Public Law No. 115–20. This law, which was passed by both Houses of Congress and signed by President Trump, revoked the Department of the Interior’s Refuges Rule, a regulation that severely restricted the use of land in Alaska’s National Wildlife Refuges. The law also prohibits the Interior department from adopting rules in “substantially the same form” as the Refuges Rule. Therefore, the substantive restrictions in the Refuges Rule are abolished and cannot be reinstated—unless and until Congress decides to adopt them.

CBD alleges that this “constraint on future [agency] rulemaking violates the separation of powers … .” According to CBD, Congress is prohibited from limiting the rule-making authority of the Department of Interior, which is part of the Executive Branch. This argument has no merit. First, The Constitution’s Property Clause gives Congress the authority to regulate federally owned lands. And through the Alaska National Interest Lands Conservation Act, the National Wildlife Administration Act of 1966 and the National Wildlife Refuge System Improvement Act of 1997, Congress delegated authority to the Department of Interior to manage Alaskan refuge areas. Therefore, Congress itself delegated to rule-making authority Interior. Without that delegation, Interior would be powerless to issue binding, substantive rules in the first place.

Second, Congress and the President have the power—vested to them by the Constitution—to pass laws such as Public Law 115–20 here. Under the Congressional Review Act, Congress may pass a joint resolution disapproving an agency rule. If the joint resolution is signed by the President, it becomes law. As CBD itself admits, this is exactly how Public Law 115–20 was enacted. Therefore, through the duly enacted Public Law 115–20, the Refuges Rule was revoked, and Interior is precluded from adopting a substantially similar rule in the future.

Now that PLF is a party, it will fully take part in this lawsuit and defend the Congressional Review Act, and if necessary, PLF will take this case to the Supreme Court.


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