Wednesday, August 10, 2011

Appeal of wolf decision appears imminent

Groups say decision can be overturned

Express Staff Writer

Photo courtesy of Living with Wolves Gray wolves are a social species that lives in packs.

Three conservation groups say they will challenge a decision made by a federal judge that upheld Congress's stripping federal protection from gray wolves.

Michael Garrity, executive director of the Alliance for the Wild Rockies, said U.S. District Judge Donald Molloy's decision to uphold an April budget rider that delisted wolves from the Endangered Species Act is ripe for appeal.

"What Judge Molloy said was he was following 9th Circuit precedent," Garrity told the Missoulian on Thursday. "The 9th Circuit can overturn its own precedent."

In a decision issued Wednesday, Molloy ruled that though he personally believed a congressional budget rider removing wolves from the Endangered Species Act violated the constitutional separation of powers by excluding judicial review, he was bound by previous decisions by the 9th Circuit to rule in favor of Congress.

"In my view, the 9th Circuit's deference to Congress threatens the separation of powers," he wrote in his decision. "[But] courts are generally bound by precedent."


Rep. Mike Simpson, R-Idaho, and Sen. Jon Tester, D-Mont., introduced a rider on an appropriations bill in April that forced the U.S. Fish and Wildlife Service to reissue a 2009 rule removing wolves from federal protection in Montana and Idaho.

Molloy had ruled in August 2010 that the agency violated the Endangered Species Act by issuing the 2009 rule. Congress' latest move negated Molloy's decision and protected the agency's rule from further judicial challenge.

In response, conservationist groups including Alliance for the Wild Rockies, the Center for Biological Diversity and Friends of the Clearwater joined in a suit against Interior Secretary Ken Salazar to overturn the species' delisting. The effort was unsuccessful, though Molloy's decision made it clear that he was frustrated with the way the species was removed from federal protection.

"The way in which Congress acted ... is a tearing away, an undermining and a disrespect for the fundamental idea of law," Molloy wrote in his order. "But a practice that is disfavored is not necessarily prohibited."

Garrity told the Missoulian last week that the challenge will likely not be resolved in time to block wolf hunts this fall in Idaho and Montana.

Last month, Idaho Fish and Game Commissioners set the state's seasons, opening most game zones without quotas. The Southern Mountains Zone, which encompasses the Wood River Valley, has a quota of 25 wolves, up from 10 in 2009. Latest estimates place Idaho's wolf population at between 700 and 1,000.

Katherine Wutz:

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