FOR PUBLICATION

          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 

(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 Defender; Federal Public
Defender's Office for the District of Nevada, Reno, Nevada;
for Defendant-Appellee.
4                     USA V. PHEASANT


Thomas A. Berry and Alexander R. Khoury, Cato Institute,
Washington, D.C., for Amicus Curiae Cato Institute.
Michael D. Pepson, Americans for Prosperity Foundation,
Arlington, Virginia, for Amicus Curiae Americans for
Prosperity Foundation.
Kara M. Rollins and John J. Vecchione, New Civil Liberties
Alliance, Washington, D.C., for Amicus Curiae New Civil
Liberties Alliance.
Molly E. Nixon, Pacific Legal Foundation, Arlington,
Virginia; Luke A. Wake, Pacific Legal Foundation,
Sacramento, California; for Amicus Curiae Pacific Legal
Foundation.
Sean M. Corkery, Assistant Solicitor General; Alan Hurst,
Solicitor General; Raúl R. Labrador, Idaho Attorney
General; Office of the Idaho Attorney General, Boise, Idaho;
Steve Marshall, Alabama Attorney General, Office of the
Alabama Attorney General, Montgomery, Alabama; Treg
Taylor, Alaska Attorney General, Office of the Alaska
Attorney General, Anchorage, Alaska; Kris W. Kobach,
Kansas Attorney General, Office of the Kansas Attorney,
Topeka, Kansas; Liz Murrill, Louisiana Attorney General,
Office of the Louisiana Attorney General, Baton Rouge,
Louisiana; Lynn Fitch, Mississippi Attorney General, Office
of the Mississippi Attorney General, Jackson, Mississippi;
Andrew Bailey, Missouri Attorney General, Office of the
Missouri Attorney General, Jefferson City, Missouri; Austin
Knudsen, Montana Attorney General, Office of the Montana
Attorney General, Helena, Montana; Michael T. Hilgers,
Nebraska Attorney General, Office of the Nebraska Attorney
General, Lincoln, Nebraska; Alan Wilson, South Carolina
Attorney, Office of the South Carolina Attorney General,
Columbia, South Carolina; Jonathan Skrmetti, Tennessee
                      USA V. PHEASANT                      5


Attorney General, Office of the Tennessee Attorney
General, Nashville, Tennessee; Sean D. Reyes, Utah
Attorney General, Office of the Utah Attorney General, Salt
Lake City, Utah; Patrick Morrisey, West Virginia Attorney
General, Office of the West Virginia Attorney General,
Charleston, West Virginia; for Amici Curiae the State(s) of
Idaho, Alabama, Alaska, Kansas, Louisiana, Mississippi,
Missouri, Montana, Nebraska, South Carolina, Tennessee,
Utah, and West Virginia.

OPINION

MILLER, Circuit Judge:

    Late at night on the Friday of Memorial Day weekend in
2021, Bureau of Land Management rangers were patrolling
Moon Rocks, an area of BLM-administered land north of
Reno, Nevada. When the rangers saw a group of
motorcyclists riding without lights, they turned on their
emergency lights to direct them to stop. According to the
rangers, one of the motorcyclists, Gregory Pheasant, refused
to stop. After the rangers chased him down, he allegedly
came to a stop only to spin his rear wheel—thereby throwing
rocks and dirt at the rangers—while making obscene
gestures and abusive comments. He then sped away again.
    Pheasant was eventually apprehended, and a grand jury
in the District of Nevada returned a three-count indictment
charging him with assault on a federal officer, resisting the
issuance of a citation or arrest, and—in the only count at
issue in this appeal—driving an off-road vehicle on public
lands at night without a taillight, in violation of 43 C.F.R.
6                     USA V. PHEASANT


§ 8341.1(f)(5). That regulation 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), 

(a), 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.” 

    Pheasant moved to dismiss the indictment, and the
district court granted the motion. As to the taillight count,
the 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.” The government appeals the dismissal of that count,
and we review the district court’s decision de novo. United
States v. Melgar-Diaz, 

 (9th Cir. 2021).
    Article I of the Constitution vests “[a]ll legislative
Powers . . . in a Congress of the United States.” U.S. Const.
art. I, § 1. “Accompanying that assignment of power to
Congress is a bar on its further delegation”—Congress “may
not transfer to another branch ‘powers which are strictly and
exclusively legislative.’” Gundy v. United States, 

 (2019) (plurality opinion) (quoting Wayman v.
Southard, 

, 42–43 (1825)). But
“Congress does not violate the Constitution merely because
it legislates in broad terms, leaving a certain degree of
                       USA V. PHEASANT                       7


discretion to executive or judicial actors.” Touby v. United
States, 

 (1991).
    The Supreme Court has defined the point beyond which
a grant of discretion is too broad—and is thus a delegation
of legislative power—through the “intelligible principle”
test. See Gundy¸ 

 (plurality opinion). Under
that test, “a statutory delegation is constitutional as long as
Congress ‘lay[s] down by legislative act an intelligible
principle to which the person or body authorized to [exercise
the delegated authority] is directed to conform.’” 

(alterations in original) (quoting Mistretta v. United States,

 (1989)).
    The requirement that Congress set out an “intelligible
principle” to constrain executive discretion “is an
exceedingly modest limitation.” Melgar-Diaz, 

. That is because “the extent and character” of the
assistance that Congress may seek from the coordinate
branches “must be fixed according to common sense and the
inherent necessities of the governmental co-ordination.”
J.W. Hampton, Jr., & Co. v. United States, 

(1928). And “[s]ince Congress is no less endowed with
common sense than [courts] are, and better equipped to
inform itself of the ‘necessities’ of government,” courts
“have almost never felt qualified to second-guess Congress
regarding the permissible degree of policy judgment that can
be left to those executing or applying the law.” Mistretta,

 (Scalia, J., dissenting). As courts confronted
with non-delegation challenges regularly point out, the
Supreme Court has only twice invalidated a statute as an
impermissible delegation—both times in 1935, and “in each
case because ‘Congress had failed to articulate any policy or
standard’ to confine discretion.” Gundy, 

(plurality opinion) (quoting Mistretta, 

 n.7);
8                      USA V. PHEASANT


see A.L.A. Schechter Poultry Corp. v. United States, 

 (1935); Panama Refining Co. v. Ryan, 

 (1935).
    As long as Congress has provided some standard
constraining discretion—even one phrased in broad terms—
the Supreme Court has upheld statutes against constitutional
scrutiny. See, e.g., Sunshine Anthracite Coal Co. v. Adkins,

, 398–99 (1940) (“just and reasonable” rates);
National Broadcasting Co. v. United States, 

,
216–17 (1943) (“public interest, convenience, or
necessity”); Yakus v. United States, 

, 423–26
(1944) (“fair and equitable” prices); Whitman v. American
Trucking Ass’ns, 

, 472–74 (2001) (“requisite to
protect the public health”). As Justice Scalia asked, “What
legislated standard, one must wonder, can possibly be too
vague to survive judicial scrutiny, when we have repeatedly
upheld, in various contexts, a ‘public interest’ standard?”
Mistretta, 

 (Scalia, J., dissenting).
    Section 303(a) easily satisfies the “intelligible principle”
test. The statute 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.” 

(a). The FLPMA instructs the
Secretary to “manage the public lands under principles of
multiple use and sustained yield.” 

 § 1732(a). The
“multiple use” mandate requires ensuring the utilization of
“public lands and their various resource values”—including
“recreation, range, timber, minerals, watershed, wildlife and
fish, and natural scenic, scientific and historical values”—in
a manner that takes into account “the relative values of the
resources” and avoids “permanent impairment of the
productivity of the land and the quality of the environment.”
Id. § 1702(c); see Public Lands Council v. Babbitt, 529 U.S.
                       USA V. PHEASANT                        9


728, 737–38 (2000). The “sustained yield” mandate requires
controlling depleting land uses to ensure “maintenance in
perpetuity of a high-level annual or regular periodic output
of the various renewable resources.” 

(h).
To that end, the statute also requires the Secretary to exercise
his authority “to prevent unnecessary or undue degradations
of the lands.” 

 § 1732(b). Taken together, those 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.
     The Supreme Court’s decision in United States v.
Grimaud makes clear why that principle is sufficiently
intelligible. 

 (1911). In that case, the Court
considered a statute authorizing the Secretary of Agriculture
to issue rules “regulating the use and occupancy of the public
forest reservations and preserving the forests thereon from
destruction.” 

. Acting under that authority, the
Secretary issued a regulation—backed by criminal
penalties—prohibiting grazing in a forest reserve without a
permit. 

. The Court held that the statute sufficiently
constrained the Secretary’s authority because it “clearly
indicated” that he was “to make provision to protect [the
lands] from depredations and from harmful uses.” 

.
Section 303(a) and its complementary provisions provide
similar guidance to the Secretary of the Interior. As in
Grimaud, the constraints imposed by the FLPMA are
enough to satisfy Article I.
    Pheasant objects to this conclusion on three grounds.
First, he argues that the adjacent statutory provisions in the
FLPMA do not prescribe a relevant intelligible principle
because they do not affect how the Secretary must execute
his responsibilities under section 303(a). That argument runs
headlong into the Supreme Court’s instruction that, in non-
10                     USA V. PHEASANT


delegation cases as elsewhere, statutory provisions “need not
be tested in isolation” because “[t]hey derive much
meaningful content from the purpose of the [relevant] Act,
its factual background and the statutory context in which
they appear.” American Power & Light Co. v. SEC, 

 (1946); accord Gundy, 

 (plurality
opinion) (“To define the scope of delegated authority, we
have looked to the text in ‘context’ and in light of the
statutory ‘purpose.’” (quoting National Broadcasting Co.,

)). Section 303(a) 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.” 

(a)
(emphasis added). Other provisions of the FLPMA define
how the Secretary is to conduct the “[m]anagement of use,
occupancy, and development of public lands,” 

 § 1732(a),
and constrain the Secretary’s “management of the public
lands,” id. § 1702(c); see id. § 1702(h). Those provisions are
even more directly relevant than the “general policy
declarations” that the Court considered in American Power
& Light Co.; they expressly define the terms that limit the
scope of the Secretary’s authority. 

. The
FLPMA thus makes clear that section 303(a) does not, as
Pheasant suggests, permit the Secretary to issue any
regulation he wishes with a colorable connection to the use
of public lands. Instead, the remainder of the statute specifies
the policy goals that the Secretary must advance.
    Second, Pheasant argues that Congress had to provide
the Secretary with more detailed guidance because the
FLPMA authorizes the Secretary to promulgate regulations
that apply on large areas of land in the American West. See
Whitman, 

 (explaining that “the degree of
agency discretion that is acceptable varies according to the
                      USA V. PHEASANT                      11


scope of the power congressionally conferred”). But the
Supreme Court has never required Congress to provide
something more specific than an “intelligible principle”
simply because a statute authorizes economically or socially
significant regulations. In Yakus, for instance, the Court
considered a statute that authorized an executive official to
promulgate regulations “fixing . . . maximum prices of
commodities and rents.” 

. That delegation
undoubtedly had sweeping economic consequences, but the
Court upheld it because it determined that the statute’s
directive to set prices in a manner that was “fair and
equitable” and to “give due consideration, so far as
practicable, to prevailing prices during the designated base
period” sufficiently constrained the executive’s discretion.

. Likewise, in Whitman, the Court considered a
statute that authorized the EPA to set air quality standards
for certain pollutants. 

. Even though the
Court conceded that this “sweeping regulatory scheme[]”
allowed the EPA to “set[] air standards that affect the entire
national economy,” it held that the guidance in the statute—
which called for standards to be set “at a level that is
requisite to protect public health from the adverse effects of
the pollutant in the ambient air”—constituted an “intelligible
principle” and thus “fit[] comfortably within the scope of
discretion permitted by [the Court’s] precedent.” 

 at 473–
76. That the delegation here authorizes regulations that may
affect a large area of land does not compel heightened
constitutional scrutiny.
    Pheasant’s related argument—that something more than
an intelligible principle is required because BLM’s mission
provides no inherent limitation on the scope of its
regulations—is similarly unavailing. BLM does not have
plenary regulatory authority; it has defined responsibilities
12                     USA V. PHEASANT


related to the “management of lands and resources.” 

(a). The regulations that Pheasant cites to
demonstrate the breadth of BLM’s authority prove just the
opposite. BLM surely regulates a wide range of conduct.
See, e.g., 

(a)(1) (noise disturbances); 

§ 8365.1-2(a) (camping); id. § 4140.1 (grazing). But all of
its regulations cover conduct with a strong connection to the
management, use, and protection of public lands. See id.
§§ 8365.1-4, 8365.1-2(a), 4140.1 (confining the regulations
to public lands). Pheasant points to no examples of BLM
regulations of private conduct that does not affect public
lands; BLM has no authority to promulgate such regulations.
    If anything, section 303(a)’s relationship to public lands
counsels in favor of more, rather than less, deference to
Congress’s choice about the degree of responsibility to
assign to the Executive Branch. The Constitution expressly
vests in Congress the authority to manage “Property
belonging to the United States.” U.S. Const. art. IV, § 3, cl.
2. That authority is plenary—the Supreme Court has
described it as “without limitations,” United States v. City &
Cnty. of San Francisco, 

 (1940), and
analogous “to the police power of the several states,”
Camfield v. United States, 

 (1897). The
Court has therefore recognized that Congress can, without
creating a delegation problem, circumscribe the “implied
license under which the United States [allows] its public
domain to be used” by authorizing an agency to make “rules
and regulations” that define “an unlawful use of the
government’s property.” Grimaud, 

. That is
precisely what Congress has done here.
    Third, Pheasant and his amici urge us to apply greater
scrutiny to section 303(a) because it empowers the Secretary
to promulgate regulations whose violation may be punished
                      USA V. PHEASANT                      13


by criminal sanctions. Although Pheasant refers to a
“delegation of criminal lawmaking power,” that description
is somewhat imprecise: It is Congress, not BLM, that created
a criminal offense by providing 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.” 

(a); see Melgar-Diaz, 

. And Pheasant does not contend that Congress is
prohibited from leaving to the agency the authority to fill in
the details of a regulatory scheme simply because the
scheme is enforced through criminal penalties. So the
question is, as it always is in non-delegation cases, how
much discretion can the agency exercise before it is
legislating? That is precisely the question that the
“intelligible principle” test answers. See Loving v. United
States, 

 (1996).
    Pheasant emphasizes that liberty concerns are especially
salient in criminal law, but those concerns have only an
attenuated relationship to the constitutional principles he
invokes. The non-delegation doctrine guarantees that
Congress does not give away the legislative power that
Article I has vested in it. That guarantee protects individual
liberty by preserving the separation of powers. But a power
does not become more legislative simply because its
exerciser can issue rules backed by criminal penalties. Thus,
although the Supreme Court has not expressly resolved
whether “something more than an ‘intelligible principle’ is
required when Congress authorizes another Branch to
promulgate regulations that contemplate criminal
sanctions,” Touby, 500 U.S. at 165–66, it has routinely
applied the “intelligible principle” test even when the
challenged statute authorized regulations backed by criminal
14                     USA V. PHEASANT


penalties. In Grimaud, for example, the Court explained that
“the authority to make administrative rules is not a
delegation of legislative power, nor are such rules raised
from an administrative to a legislative character because the
violation thereof is punished as a public offense.” 

; see Yakus, 

 (upholding grant of
authority to executive to set price regulations backed by
criminal penalties); Loving, 517 U.S. at 771–72 (upholding
grant of authority to President to define aggravating factors
applicable in military capital cases).
    Pheasant’s view finds no support in circuit precedent,
either. To the contrary, in Melgar-Diaz, we rejected a non-
delegation challenge to a statute that criminalized crossing
the border at a time or place other than as designated by an
immigration official. 

. The criminal character
of the statute was irrelevant to our conclusion that Congress
provided a sufficiently intelligible principle. It mattered only
that the statute “does not cast immigration officials
completely adrift when they designate times and places of
entry,” which meant that Congress had not delegated
legislative power. 

. Other circuits have also
“decline[d] to abandon the well-settled ‘intelligible
principle’ standard” when reviewing “a statute with criminal
consequences.” United States v. Nichols, 

 (10th Cir. 2014), rev’d on other grounds, 

(2016); accord United States v. Cooper, 

, 270–
71 (3d Cir. 2014).
    Even in the criminal context, the “intelligible principle”
test provides the controlling legal standard for evaluating
non-delegation challenges. And under that test, the district
court erred in invalidating section 303(a).
     REVERSED and REMANDED.