Friday, August 5, 2011

Wolves denied protection—again

Judge upholds congressional rider

Express Staff Writer

Nearly a year after wolves were relisted under the Endangered Species Act, a federal judge upheld a congressional move to strip gray wolves of federal protection. However, he made no secret of his frustration over binding legal precedent.

"The way in which Congress acted ... is a tearing away, an undermining and a disrespect for the fundamental idea of law," wrote 9th District Court Judge Donald Molloy in his decision on Wednesday. "But a practice that is disfavored is not necessarily prohibited."

Congress passed a rider to an appropriations bill in April that ordered the U.S. Fish and Wildlife Service to reissue a 2009 rule that removed wolves from federal protection in Montana and Idaho. Molloy had ruled in August 2010 that the agency violated the Endangered Species Act, but Congress' move negated Molloy's decision and protected the agency's rule from further judicial challenge.

Wolf advocates argue that Congress violated the constitutional separation of powers by overturning a judicial decision. Molloy wrote in his decision that he agrees, but has no choice but to rule the way he did due to the rider's language.

The budget provision reads that the 2009 rule should hold "without regard to any other provision of statute or regulation that applies. The 9th Circuit has upheld this specific wording as an amendment to any applicable existing law, Molloy said.

"In my view, the Ninth Circuit's deference to Congress threatens the separation of powers; nonspecific magic words should not sweep aside constitutional concerns," he wrote. "[But] courts are generally bound by precedent."

The rider's language was developed by Rep. Mike Simpson, R-Idaho, and Sen. Jon Tester, D-Mont. Simpson said Thursday that he was pleased with the judge's ruling.


"While I am not surprised by Judge Molloy's decision, I am pleased the district court has upheld the constitutionality of my language," Simpson said. "Anyone but the most unreasonable of activists knows [wolves'] delisting is not just warranted, it is essential and legal."

Wolf advocates were not as supportive. Kieran Suckling, executive director for the Center for Biological Diversity in Tucson, Ariz., told The Associated Press that an appeal was "likely" thanks to the wording of Molloy's decision.

"It gives us hope that this isn't dead yet," Suckling said.

The decision would allow wolf hunts in Idaho and Montana to move forward, as well as an agreement hashed out Wednesday that would put wolves in Wyoming on the path to state management.

Wyoming's wolves were not included in the budget rider or the 2009 final rule because of concerns of federal officials over a law allowing wolves to be shot on sight through much of the state.

An agreement reached between the Department of the Interior and the state earlier this week would still allow wolves in all except a small northwestern corner to be shot without a tag at any time of the year.

Wyoming would be required to maintain a population of 100 wolves and 10 breeding pairs outside Yellowstone National Park. The state's current wolf population is estimated to be 340 animals.

"It was this attitude that led wolves to become endangered in the first place," said Suzanne Stone, spokeswoman for Defenders of Wildlife. "This is no better than a similar plan rejected by the Fish and Wildlife Service under the Bush administration. If it was no good then, it's no good now."

Katherine Wutz:

Four wolves killed near Elk City

Four more wolves have been killed near Elk City in an effort to push the animals away from town, according to The Associated Press.

A total of five wolves have been killed due to complaints about the animals' attacking dogs and cattle. The first was shot by Idaho County deputies in late June. The most recent four were caught in foothold traps set by agents from the U.S. Fish and Wildlife Service.

Idaho Department of Fish and Game supervisor Dave Cadwallader said that even after the five wolves were killed, two large calves were attacked and killed within the Elk City township.

Cadwallader last May issued an order allowing trappers, deputies and conservation officers to kill wolves in the Elk City area in northern Idaho until Aug. 29, just days before the state's season opens.

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