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Judge Reluctantly Rules As Constitutional Congressional Rider Lifting ESA Protections For Wolves
Posted on Friday, August 05, 2011 (PST)

A federal judge has reluctantly upheld a congressional rider that lifted Endangered Species Act protections for wolves in the northern Rockies, saying he was required to do so by binding precedent.

 

U.S. District Judge Donald Molloy of Missoula issued the order Wednesday in response to a lawsuit that challenged the budget rider passed by Congress earlier this year that effectively delisted wolves in Montana, Idaho, Oregon and Washington.

 

The ruling allows Idaho and Montana to proceed with regulated wolf hunts that are planned for this year.

 

Molloy said in his ruling that he believes the rider undermines the rule of law and the separation of powers of doctrine, but case law required him to find the law constitutional.

 

“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,” he wrote, later adding that the rider represents “a tearing away, an undermining and a disrespect for the fundamental idea of the rule of law,” Molloy wrote in his order.

 

But, he added, past rulings by the U.S. Court of Appeals for the Ninth Circuit requires him to interpret the rider as not violating the separation of powers, the constitutional principle ensuring none of the three branches of government tramples on the independence of the other branches.

 

The budget rider directed the Interior secretary to remove wolf protections “without regard to any other provision of statute or regulation that applies to issuance of such rule.”

 

The use of that exact phrase amends the ESA by implication, Department of Justice attorneys argued, even if the rider didn’t reference the specific law.

 

Molloy said the 9th Circuit has upheld that interpretation in the past so he must abide by it, even though he clearly disagrees with the appellate court.

 

“In my view, the Ninth Circuit’s deference to Congress threatens the Separation of Powers; nonspecific magic words should not sweep aside constitutional concerns,” Molloy wrote.

 

It’s not clear whether the conservation groups involved with the case would appeal, but it appears Molloy’s ruling provides avenues for doing so and an appeal is likely, said Kieran Suckling, executive director for the Center for Biological Diversity.

 

“He did everything but buy us a bus ticket to San Francisco,” Suckling told the Associated Press, referring to the location of the Ninth Circuit. “That gives us hope that this isn’t dead yet.”

 

Sen. Jon Tester, D-Mont., defended the rider that he sponsored.

 

“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,” he said in a press release. “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.”

 

Meanwhile, Secretary of the Interior Ken Salazar and U.S. Fish and Wildlife Service Director Dan Ashe this week announced that the Service has reached an agreement with the State of Wyoming that will result in revisions to the state’s management plan for the gray wolf.

 

The points of agreement, first announced in principle in early July, promote the management of a stable, sustainable population of wolves and pave the way for the Service to return wolf management to Wyoming.

 

Under the points of agreement, the State of Wyoming will develop and implement a wolf management plan to maintain a healthy wolf population at or above the Service’s recovery goals, provide for genetic connectivity with other wolf subpopulations in the Northern Rockies, and otherwise ensure that gray wolves in Wyoming are managed so that they will not need to be returned to the Federal List of Endangered and Threatened Wildlife.

 

Once Wyoming incorporates the revisions into the wolf management plan, the Service 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 ESA.

 

The Northern Rocky Mountain wolf population is biologically recovered, with more than 1,650 wolves and over 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 Service expects the Northern Rocky Mountain wolf population will be maintained above recovery levels and no longer faces a risk of extinction.

 

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