Amid a legal fight over dirt biking on public lands, conservative lawyers are advancing an argument that Congress cannot hand over its lawmaking authority to federal agencies.
In friend of the court briefs filed last week, groups like the New Civil Liberties Alliance and Pacific Legal Foundation asked the 9th U.S. Circuit Court of Appeals to uphold a victory for a dirt biker who faced charges for allegedly failing to use a taillight on his vehicle while riding at night on federal land in the Moon Rocks recreation area in Nevada.
They said a lower court rightly determined that Congress had unlawfully handed the Interior Department “virtually unfettered” legislative power to criminalize activity on public lands.
“That more than 65 percent of the land in Nevada will have its criminal law imposed by bureaucrats in Washington with no democratic accountability is insupportable under our Constitution, which vests the power to make criminal law solely in the Congress,” said John Vecchione, senior litigation counsel for the New Civil Liberties Alliance, in a statement accompanying the group’s amicus brief.
The brief comes as the alliance is also throwing its support behind a pending request for the Supreme Court to strengthen the nondelegation doctrine, which says Congress cannot divest its legislative powers to federal agencies, like Interior’s Bureau of Land Management.
It’s a cause that has captured the attention of some of the Supreme Court’s most conservative members, as the bench moves to weaken federal agencies. The court is currently on the verge of deciding a case that could limit Chevron deference, which gives agencies power to interpret ambiguous laws.
Vecchione is representing litigants in the Supreme Court case that have called for Chevron’s demise.
In the litigation that is now before the 9th Circuit, a Republican-appointed judge last year applied a more limited form of the nondelegation doctrine to dismiss criminal charges against Gregory Pheasant for violations of BLM rules on off-highway vehicles.
“In a state like Nevada, these State BLM Directors are essentially single-person legislators and governors because they promulgate regulations (laws) and enforce the regulations [laws],” wrote Senior Judge Robert Jones, a George W. Bush appointee of the U.S. District Court for the District of Nevada, in an April 2023 order.
He continued: “This delegation of power is the exact type of delegation that the nondelegation doctrine tries to prohibit because it tries to prevent ‘Congress from intentionally delegating its legislative powers to unelected officials.’”
Other Supreme Court power players — such as the Pacific Legal Foundation, which last year successfully urged the court to remove protections for most of the nation’s wetlands — have also come to Pheasant’s defense in the 9th Circuit.
BLM, which appealed the case after losing in Nevada District Court, has urged the 9th Circuit to take a different view, pointing to cases where the Supreme Court has said Congress can give agencies power to issue regulations that are in the public’s best interest.
“[T]he Supreme Court has ‘repeatedly turned down many non-delegation challenges, including in cases involving very broad conferrals of authority,’” government attorneys wrote in a November brief.
According to BLM’s brief, Pheasant and another rider evaded pursuit by a ranger who attempted to pull them over for riding without taillights. When the ranger later caught up with the riders, they swore at him and used their bike tires to spray rocks in his face.
Congress has given Interior the power to oversee federal lands while providing proper limits on the agency’s authority, BLM said.
“In short, this is not a case ‘in which applying the rarely invoked nondelegation doctrine would be appropriate,’” lawyers for the agency wrote to the 9th Circuit. “This Court should reverse the district court’s holding with respect to the nondelegation doctrine.”
