UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-991 D.C. No. Plaintiff - Appellant, 3:21-cr-00024- RCJ-CLB-1 v. GREGORY W. PHEASANT, OPINION Defendant - Appellee.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Senior District Judge, Presiding

Argued and Submitted October 10, 2024 Las Vegas, Nevada

Filed February 19, 2025 Before: Carlos T. Bea, Mark J. Bennett, and Eric D. Miller, Circuit Judges.

Opinion by Judge Miller 2 USA V. PHEASANT

SUMMARY *

Criminal Law

The panel reversed the district court’s dismissal of a count charging Gregory W. Pheasant with driving an off- road vehicle on public lands at night without a taillight, in violation of 43 C.F.R. § 8341.1(f)(5), and remanded. Section 8341.1(f)(5) was adopted by the Secretary of the Interior under authority vested in him by section 303(a) of the Federal Land Policy and Management Act of 1976 (FLPMA), which directs the Secretary to “issue regulations necessary to implement the provisions of [the FLPMA] with respect to the management, use, and protection of the public lands, including the property located thereon.” The statute provides that “[a]ny person who knowingly and willfully violates any such regulation which is lawfully issued pursuant to this Act shall be fined no more than $1,000 or imprisoned no more than twelve months, or both.” The district court held that section 303(a) is an unconstitutional delegation of legislative power because it gives the Secretary “unfettered legislative authority” to make rules that “cover almost all conduct on public lands” without “any guidance or restraint as to when the Secretary . . . shall promulgate rules.” Article I of the Constitution vests all legislative powers in Congress. Accompanying that assignment of power to Congress is a bar on its further delegation—Congress may * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. PHEASANT 3

not transfer to another branch powers which are strictly and exclusively legislative. But Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. Under the Supreme Court’s “intelligible principle” test, a statutory delegation is constitutional as long as Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform. The panel held that section 303(a) easily satisfies the “intelligible principle” test because, taken together, the FLPMA’s provisions set out a clear principle: The Secretary must develop a long-term management strategy to realize the land’s value in a sustainable way. Such constraints are enough to satisfy Article I.

COUNSEL Adam M. Flake (argued), Appellate Chief and Assistant United States Attorney; Jason M. Frierson, United States Attorney; Office of the United States Attorney, Las Vegas, Nevada; Robert L. Ellman, Appellate Chief, Office of the United States Attorney, Reno, Nevada; for Plaintiff- Appellant. Ellesse Henderson (argued) and Rohit Rajan, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Federal Public Defender's Office for the District of Nevada, Las Vegas, Nevada; Christopher P. Frey, Assistant Federal Public Defend