Budget Deal Ends Protections for Gray Wolves

gray wolf

Update April 30, 2011: The budget deal for FY 2011 was signed into law with the provision de-listing the gray wolf.

For more on this, read Animal Law Coalition’s report below.   

Original report: Recently, U.S. District Judge Donald Molloy rejected a proposed settlement that would have delisted the gray wolf from the Endangered Species Act protections. 

Now, Congress appears set to approve a budget deal that will do just that. A rider offered by Rep. Mike Simpson (R-ID) and Sen. Jon Tester (D-MT) is buried in the many pages of the Final FY 2011 Budget Bill:

SEC. 1713. Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09-CV-118J and 09-CV-138J on November 18, 2010.

The rider doesn’t reference wolves at all or mention delisting but instead cleverly refers to a 2009 U.S. Fish & Wildlife Service rule that was invalidated by the court. The rule delisted the gray wolf in the Northern Rocky Mountain region except in Wyoming. The rider would reinstate the rule as the law.

This would overturn the August 5, 2010 ruling that the U.S. Fish & Wildlife Service’s 2009 Final Rule violated the express terms of the Endangered Species Act (the “ESA”). The challenged Final Rule was vacated, restoring ESA protections for the wolves in Idaho and Montana. That decision is now before the Ninth Circuit on appeal.
In his recent opinion, Judge Molloy refused to uphold a proposed settlement of the case on appeal between the US FWS and Dept. of Interior and 10 of the 14 plaintiffs.

The ten "Settling Plaintiffs" are: Defenders of Wildlife, Natural Resources Defense Council, Sierra Club, Center for Biological Diversity, Hells Canyon Preservation Council, Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, Oregon Wild, Cascadia Wildlands Project, and Wildlands Network (formerly the Wildlands Project). The four "Non-Settling Plaintiffs" are: Humane Society of the United States, Friends of the Clearwater, Alliance for the Wild Rockies, and Western Watersheds Project. The states of Idaho and Montana are a party to the settlement.

The judge found that the case could not be settled without the consent of all parties and also that the court had no discretion to leave an invalid rule in place that delisted wolves in Montana and Idaho pending issuance of a new rule. The judge explained:
[The 2009 rule] amounted to wrongfully removing ESA protections for the endangered species. They now ask the Court if the wolf in Montana and Idaho-an endangered species-can by court action be excused from the ESA’s protective provisions. This proposition presents a legal  conundrum that goes directly to the
ideas behind the rule of law. The policy about listing is a political decision made by Congress. The actual listing determinations are supposed to be based on
scientific, not political, evidence.
Agency listing determinations are then
measured by applicable legal standards when they are challenged. Therefore, …it is first necessary to determine whether the Court even has the power to issue the requested stay….because the species in Idaho and Montana were unlawfully delisted, that Agency Rule is invalid and the wolves must be placed back under the protections of the ESA pursuant to the Rule previously in force.

The law imposes this requirement. The Settling Parties argue that such an outcome is not mandatary, but instead the Court can exercise its discretion and stay its earlier remedy as to wolves in Idaho and Montana. However, such a determination places the animals in a status which would authorize a “taking” contrary to the ESA. The Court does not have such unfettered discretion.

Congress and the President, however, appear to have no qualms about slipping a rider into a massive budget bill to strip the gray wolf of carefully considered ESA protections. For more on the litigation surrounding the 2009 rule….