Wolves seem to be headed for the Ninth Circuit Court of Appeals after Federal Judge Donald Molloy ruled in favor of the federal government’s having removed wolves from the endangered species list.
Molloy said in his written decision he would have ruled against the Congressional delisting had there not been “binding precedent from the Ninth U.S. Circuit Court of Appeals and other courts.” Molloy’s reluctant ruling scotched legal efforts by The Center for Biological Diversity and other groups to argue Congress had violated the separation of powers between the legislative and judicial branches by passing legislation delisting gray wolves.
They argued, unsuccessfully, that Congress only had the power to amend laws like the Endangered Species Act (ESA), not to amend the legal rulings issued concerning an animal’s status on the ESA. They also argued it would represent the first time Congress had removed an animal from the endangered species list -a change previously made by scientists.
In Molloy’s ruling he says the defendants argued – unpersuasively- “that Congress balanced the conflicting public interests and public policy to resolve a difficult issue.”
“I do not see,” the opinion reads, “what Congress did in the same light. Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution.”
“Nonetheless,” Molloy wrote, “the case law requires me to adopt the latter interpretation.”
Having twice ruled against the removal, Molloy wasn’t bashful in his distaste for the ruling, writing “magic words” in the legislation forced his decision.
The magic words? A directive to the Interior secretary to remove wolf protections “without regard to any other provision of statute or regulation that applies to the issuance of such rule.”
Those words, Justice Department lawyers argued, effectively amended the Endangered Species Act. Since the Ninth Circuit had upheld that interpretation in the past, Molloy wrote he must abide by it, even though he felt “the Ninth Circuit’s deference to Congress threatens the Separation of Powers: nonspecific magic words should not sweep aside constitutional concerns.”
Short interpretation of the case: barring further appeal hunts designed to cull wolves Idaho, Montana, and portions of Oregon, Washington and Utah would be legal.
Only Wyoming’s wolves continue under federal protection under the ESA. That protection isn’t quite so “protective” as it might seem.
A plan has been announced that would transfer the majority of wolves living outside Yellowstone National Park from federal to state control. Only 100 wolves and 10 breeding pairs would remain covered if that plan were implemented.
Wolf advocates, as you can imagine, are up in arms. Suzanne Stone, spokesperson for the Defenders of Wildlife, issued a statement condemning some methods of wolf control as a “clear violation of fair-chase hunting ethics.”
“It was this attitude that led wolves to become endangered in the first place,” she wrote.
That’s not the opinion shared by the Interior Department in their statement issued shortly after the ruling.
“The Northern Rocky Mountain wolf population is biologically recovered,” it read, “with ore than 1,650 woles and over 110 breeding pairs. It has exceeded recovery goals for 11 consecutive years, fully occupied nearly all suitable habitat, and high levels of genetic diversity and gene flow within the region’s meta-population structure.”
Wolf advocates say they’re “howling mad” over the decision, but the organizations involved in the suit have yet to say if there will be an appeal to the Ninth Circuit. Farmers, ranchers and wildlife officials, however, are preparing for wolf hunts already announced in four states listed in the Congressional budget rider.
The Rocky Mountain Elk Foundation president and CEO David Allen says RMEF is “encouraged” by Molloy’s ruling, adding “Until the wolf problem is fixed permanently, we’re likely to see appeals, more legal antics and frivolous lawsuits by extremist groups who literally make their living suing the federal government –and creating crises where there are none, for the purpose of raising funds.”
“Real on-the-ground science is the big winner in all of this,” Allen says, “as there is no doubt that wolves are recovered and should be managed like all other wildlife.”
“To date,” he continued, “no one has shown science to dispute this fact.”
Allen’s correct on both points. There is no scientific evidence that disputes the success of the wolf recovery. And the non-profit groups who are repeatedly involved in lawsuits against the federal government do receive federal funds to compensate them for legal fees. In many instances, their submitted legal fees make the Pentagon’s much-maligned $10,000 toilet seats and $5,000 hammers look like bargains.
Legislation is needed to address what is, in effect, federal subsidization of lawsuits against the government, but that’s a story for another time.
