Judge Upholds Northern Rockies Wolf Delisting

After years of legal wrangling and seemingly endless lawsuits, a federal judge on Wednesday upheld a congressional budget rider that restored the U.S. Fish and Wildlife Service’s 2009 order removing Endangered Species Act protections for gray wolves Montana and Idaho and parts of Utah, Oregon and Washington.

Barring a successful appeal, the decision by Federal District Judge Donald Molloy allows planned wolf hunting seasons in Montana and Idaho to go forward this fall.

In a separate action on Wednesday, the USFWS reached an agreement with Wyoming on a new wolf management plan, which will allow that state’s approximately 340 wolves to be delisted as well. Wolves within Wyoming’s borders have been excluded from previous delisting attempts because the state lacked a federally-approved management plan—a fact that became a sticking point with the courts. Molloy ruled in 2008 that the government violated the Endangered Species Act by treating Montana and Idaho wolves differently from those in Wyoming.

Both of Wednesday’s actions pave the way for all wolves in the Northern Rockies to be delisted, meaning management responsibility will be assumed by the states.

Molloy’s Ruling
At issue in the lawsuit was whether or not the budget rider constituted a “detectable change” in the Endangered Species Act, and if the rider violated the separation of powers doctrine. In his decision, Molloy upheld the congressional delisting order on both counts, albeit reluctantly, saying he was bound to do so by precedent.

The full text of Molloy’s 18-page ruling can be read here.

Three of the plaintiffs in the lawsuit, the Alliance for the Wild Rockies, Friends of the Clearwater, and WildEarth Guardians, have said they plan to appeal Molloy’s ruling to the 9th U.S. Circuit Court of Appeals. A fourth plaintiff, the Center for Biological Diversity, said it is “likely” to appeal the decision.

“Returning Montana’s wolves to Montana management was the right thing to do, and we did it in a responsible way with utmost respect to existing law and to our Constitution,” said Sen. Jon Tester (D-Mont.), who, along with Rep. Mike Simpson (R-Idaho), attached the rider mandating the delisting in April’s appropriations bill. “Now that the court has agreed, it’s time to move forward with Montana’s wolf management plan for the sake of our livestock, our wildlife, and for better management of wolves themselves.”

NRA, Safari Club International, the Rocky Mountain Elk Foundation and many other groups have supported the return of recovered wolf populations to state management.

Both Idaho and Montana’s federally-approved wolf management plans call for sustainable populations to be maintained through hunting. Idaho’s wolf season begins Aug. 30, with an unlimited quota in most of the state, while Montana’s wolf season starts Sept. 3 in some areas with an overall harvest quota of 220 wolves. Both states want to remain above 150 wolves and 15 breeding pairs to ensure the populations remain viable.

 

Official estimates place Montana’s wolf population at 566 animals and Idaho’s at more than 1,000. In 2009, Montana and Idaho held their first regulated wolf hunts in modern times. Hunters in Montana took 72 of the 75 wolves allowed that year. Idaho also fell shy of its 220-wolf quota during the 2009 hunt, with hunters taking 188 wolves.

 

The 2010 wolf hunting seasons were wiped out last August by a decision from Molloy to reinstate federal protections for the predators.

 

The Wyoming Agreement
Despite Wednesday’s agreement, wolf delisting in Wyoming still faces hurdles. The agreement must be approved by the Wyoming Legislature and undergo a lengthy federal review process before management can be turned over to the state.

 

Under the points of the agreement, Wyoming will manage for a population of at least 10 breeding pairs and at least 100 wolves outside Yellowstone National Park. The state will also expand what is termed a “Trophy Game Management Area” near the park in the state’s northwest corner where wolves cannot be killed except during established hunting seasons from Oct. 15 to the end of February. For all other months wolves will be managed as predators in the extension area.

 

All Wyoming wolves outside the Trophy Game Management Area will be managed as predatory animals.

 

The five to six breeding pairs—comprising roughly 60 wolves—in Yellowstone and Grand Teton National Parks will be delisted but won’t be under state control.

 

“This important agreement enables us to recognize the successful recovery of the gray wolf across the Northern Rocky Mountains,” said USFWS Director Dan Ashe. “Responsible management by the state wildlife professionals of the Wyoming Game and Fish Department—which includes regulated, limited trophy game hunts in certain areas similar to those conducted for other game species like elk and mountain lions—will ensure the long-term conservation of this population of wolves.”

 

Once Wyoming incorporates the revisions into its wolf management plan, the USFWS will move forward with a proposed rule to delist the gray wolf in Wyoming. That proposed delisting rule will be subject to public and peer review as part of a formal rulemaking process, and a final determination to delist wolves in Wyoming and return management of the species to the state will be dependent upon corresponding changes also being made to Wyoming state statutes and regulations. Until a final determination to delist gray wolves is published, wolves in Wyoming will remain fully protected under the Endangered Species Act.

 

“This is far from the end of this process, but I think we have come up with something that fits with Wyoming’s values and economy,” said Wyoming Gov. Matt Mead, who helped craft the agreement. “For years ranchers and sheep producers have been asked to sacrifice, and they have. We have lost significant numbers of elk and moose, and we have not had a say in the management of an animal inside Wyoming. It is time for that to change, and I appreciate [Intertior] Secretary Salazar and the USFWS working with us. Wolves are recovered in Wyoming; let’s get them off the Endangered Species List.”

 

According to the USFWS, the Northern Rocky Mountain wolf population is biologically recovered, with more than 1,650 wolves and more than 110 breeding pairs. It has exceeded recovery goals for 11 consecutive years, fully occupies nearly all suitable habitat, and has high levels of genetic diversity and gene flow within the region’s meta-population structure. Under state management, the USFWS expects that the Northern Rocky Mountain wolf population will be maintained above recovery levels and no longer faces a risk of extinction.

Comments

The photo up top is a howl from Defenders of Donations. Quite the paragraph that previous commenter left, can anyone summarize? From somsai on Monday, August 08, 2011 7:59 PM In regard to the District Court for the District of Montana, Missoula Division ruling in Alliance for the Wild Rockies v. Ken Salazar, et. al: “…The issues in this case cannot be resolved without considering the rule of law. This case presents difficult questions for me. The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining, and disrespect for the fundamental idea of the rule of law.“ The established role of the judiciary does not extend to the specification of how the Congress achieves its Constitutional role, unless that method is denied to them by the Constitution. I do not understand how this could present a difficulty for the jurist. And aren’t all cases resolved by considering the rule of law? And how is the common act of attaching a rider to an unrelated bill undermining the fundamental rule of law? “…Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution by avoiding the very debate on issues of political importance said to provide legitimacy. Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders to legislation that must be passed…” Inserting policy changes into unrelated bills is an authorized method of legislative action, which is neither unusual nor prohibited by the rules of the bodies of Congress or the Constitution. Until such time as “germaneness” of all aspects of a particular piece of legislation is enforced by Congress this practice is likely to continue unabated. And if it is not permitted, many existing pieces of legislation would be subject to invalidation which would create chaos and uncertainty. “…In its capacity as the body charged with setting public policy Congress enacted the ESA...” In its capacity as the body charged with setting public policy Congress, through the rider, amended the ESA. Judicial activism and Executive Orders already impinge on the authority of Congress to set public policy in a greater way than riders to unrelated bills. To deny Congress to alter the ESA by whatever legislative means they deem appropriate would deny them the ability to legislate the bill in the first place, and would be a usurpation of the power granted to Congress by the Constitution in the first place. “…If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits, I would hold Section 1713 is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court in U.S. v. Klein, 80 U.S. 128 (1871). However, our Circuit has interpreted Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992), to hold that so long as Congress uses the words “without regard to any other provision of statute or regulation that applies,” or something similar, then the doctrine of constitutional avoidance requires the court to impose a saving interpretation provided the statute can be fairly interpreted to render it constitutional...” The Circuit Court found the Robertson issue was unconstitutional, but the Supreme Court reversed. Thereby, the established precedent is that of the Supreme Court, not the Circuit Court. Also, is how a jurist would rule if existing precedent did not exist necessary in his ruling or an attempt to influence appellate courts to over-rule those precedents? If the latter is the case, is he not attempting to go beyond judicial review and toward legislating from the bench? “…In my view, the Ninth Circuit’s deference to Congress threatens the Separation of Powers; nonspecific magic words should not sweep aside constitutional concerns...” Separation of Powers is not threatened by a Circuit court adhering to established precedent. It is threatened by judicial activism which ignores the appropriate roles of the various branches of government, which is a greater threat to our form of Constitutional government. By using those very “nonspecific magic words” which have been determined by the Supreme Court to be valid in answering the question of constitutionality, Congress has maintained the status quo in regard to the separation of powers. As a result, while I am in agreement with the result of this ruling, I have concerns regarding some of the reasoning expressed in the opinion. It appears that the jurist is almost begrudging the need to make the decision that he did, the existing precedents notwithstanding. From Bcullum on Friday, August 05, 2011 9:10 AM

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