Of Wolves and Men
It looks like one of the losers in the budget compromise will be the wolf. The Tester-Simpson rider, attached to the compromise federal budget bill, will delist wolves from the federal endangered species list in Montana, Idaho, Washington, Oregon and Utah. Heather Hansen, at CU Boulder, has a detailed blog post on the wolf.
The bigger loser here is the integrity of our environmental laws. This rider, a joint effort of Senator Jon Tester (D-Mont.) and Rep. Mike Simpson (R-Idaho), is an exercise in arrogance, cowardice and congressional overreach. Oh, and let’s not forget hypocrisy: both sides of the political aisle have complained incessantly about the evils of policy riders attached to must-pass appropriations bills, yet both sides continue to attach riders left and right. (If you need examples of congressional hypocrisy, just watch any random episode of The Daily Show.) Expect to hear a lot more about harmful environmental riders in the coming budget showdowns.
I bet you can guess which Democratic Senator faces an upcoming election and low poll numbers in his home state….
To understand how the rider works, you need to first know several pieces of background information. First, the Fish & Wildlife Service issued a decision in 2009 delisting the gray wolf in Idaho and Montana and parts of Washington, Oregon and Utah. Second, in Defenders of Wildlife v. Salazar, the District Court for the District of Montana declared that the 2009 delisting wrongfully removed ESA protections for the gray wolf species. And just hours after the agreement to include the rider, the District Court rejected a settlement in the case. That settlement would have delisted the wolf but maintained protections in parts of Washington, Oregon and Utah, as well as requiring independent scientific review.
The text of the compromise federal budget bill is now available online. Here is the text of the rider:
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.
Attaching this rider to the appropriations bill, instead of debating a separate policy bill, is cowardly. Assuming that Congress knows more about the wolves than all of the participants in the litigation is arrogant. For example, this rider is worse than the rejected settlement, in that it lacks any requirement for independent scientific review. But worst of all, whoever wrote the rider seems to believe that Congress stands above judicial review.
First, this rider would allow Fish & Wildlife to issue a final rule, ignoring any and all procedures under the Endangered Species Act and the Administrative Procedures Act. Because Congress wrote those Acts, it can (unwisely) allow an Executive agency to forgo any further legislative scrutiny. It is less clear, however, that Congress can exempt this final rule from judicial review. Yes, Congress can restrict the jurisdiction of the federal courts. But this rider eliminates all judicial review for this delisting rule.
Second, Congress purports to eliminate judicial review of the rider itself. Typically, when a bill is passed into law, it is subject to judicial review at least as to constitutionality. Congress would be well-advised to consider the ramifications of its actions here: do legislators really want their fellow members to have the ability to pass legislation that is unreviewable by the judiciary?
Third, this rider makes a mess of the Montana litigation. It simultaneously reissues a delisting rule that the District Court held to violate the Endangered Species Act and implicitly protects that District Court decision. I am not even sure what to make of that contradiction, but it certainly means more lawyer’s fees for the Montana litigation. [Edit: Actually, the rider reissues the delisting rule, which the District Court of Montana held to violate the ESA. The rider protects a District Court of Wyoming decision that remanded the rule choosing to not delisting the wolf in Wyoming. Protecting the Wyoming decision, however, will not automatically delist the wolf in Wyoming. Nor will reissuing the rule. The status of the Montana decision is in limbo. See my review of wolf litigation for more.]
Oh, and go buy the book: Of Wolves and Men, by Barry Holstun Lopez.
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About M. Rhead
M. Rhead Enion was the UCLA Law Emmett/Frankel environmental law fellow for 2010–2013. His research interests include cap-and-trade, coastal science and policy, environ…
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Not a lawyer, but this rider seems to beg for litigation, no?
I feel a bit better about it after reading your post. If I understand it, the rider doesn’t so much “remove the wolf from ESA protection” (the general characterization) as attempt to reinstate the FWS rule. The latter may be less of a blow to the ESA.
I’m disappointed the Dems caved on this issue, but they probably care more about Tester holding his seat than they do about the fate of the gray wolf in the Northern Rockies. It’s the number one policy priority going forward: Obama ‘012.
It is true that the rider will not remove all ESA protections for the wolf. It will delist the wolf in certain states, but not all states. And for what its worth, at least some agency officials at FWS believe that the wolf can be delisted in some states without endangering recovery; that is the point of the FWS rule.
The problem is that the Montana District Court already ruled that FWS cannot remove protections on a population segment of the gray wolf because the ESA protects species, not population segments of species. Implementing patchwork protection for a species likely increases the risk that the species will go extinct. In this case, Idaho and Montana authorized public wolf hunts immediately after FWS issued its delisting rule. So it is fair to assume that if this rider passes, the wolf will once again go from a protected species to a hunted species overnight.
It is difficult to say if the rider could be effectively challenged in court. As I mentioned in my post, Congress could certainly just delist the wolf. Congress could probably even delist the wolf in some states, but not all states. But one interpretation of the rider is that Congress has told FWS to issue a rule that violates federal law. The success of any litigation would depend on if a court gives this rider a more charitable interpretation.
You are correct to suggest that the rider may be less of a blow to the ESA. The rider leaves the Montana District Court decision standing and does not modify the ESA. Therefore, any future attempts to delist a segment of a species would still violate the ESA, at least according to the district court opinion. And Congress did not just delist the wolf entirely, which would have been an unprecedented move. (Congress did, of course, exempt the Tellico Dam from the ESA in 1979.)
I think I read (Cadillac Desert) that Tellico went forward as part of deal to return control of the Canal Zone to Panama–a certain parallel with the budget deal.
Thanks very much for the detailed posts.
Yesterday, Senator Jon Tester’s shameful and undemocratic tactic of attaching his wolf rider (anti-Endangered Species Act rider) to the US Senate’s must-pass budget bill succeeded.
As the New York Times reported, “Congress for the first time is directly intervening in the Endangered Species List and removing an animal from it, establishing a precedent for political influence over the list….The rider is the first known instance of Congress’ directly intervening in the list….The rider also precluded judicial review of this provision.”
Senator Tester has now opened up the floodgates for more politicians just simply (and quietly) attaching riders to must pass bills to remove other endangered animal and plant species from ESA protections. Are salmon next? Desert tortoise? Leatherback turtles? Puma? Black-footed ferret?
Senator Tester’s actions are a great gift to developers, the resource extraction industry, other special interests and politicians that don’t like the ESA and could really give a toot about protecting native wildlife and plants. The message is clear: just pass a rider and close the court house door like Montana’s Senator Tester!
Senator Tester also forever closed the court-house doors and removed the possibility of any judicial review of his wolf rider, meaning wolves are delisted forever, no matter how low their populations may plummet. Until Senator Tester, this was never done in the 38 year history of the ESA.
Please make sure to contact Senator Tester directly and let him know how you feel about his wolf/ESA rider. Thank you.
You can Email Senator Tester at this link: http://tester.senate.gov/Contact/
Senator Tester’s D.C. Office phone number is: (202) 224-2644
I agree with Mathew’s sentiments, Tester’s rider was a dirty backroom deal–and he wasn’t the only one in on it. Reid and the Obama Administration were also in on it. Defending the seat is more important than the wolf.
But the way I understand it, wolves are not delisted forever. The rider is based on a FWS determination that wolves had recovered. I think the states have to follow the recovery plans FWS approved as part of the 09 delisting. If something changes, I think the wolf could (theoretically) be relisted in those states. There would be political hell to pay for sure. If I am wrong, I am sure Rhead will set us straight.
I’ll be happy to call Tester’s office. He’s been a waste of space in Washington anyway.
The FWS delisting rule is here: http://www.fws.gov/mountain-prairie/species/mammals/wolf/74FR15123.pdf
The introduction to the rule explains that their 2008 estimate is “5 times higher than the minimum recovery goal and 3 times higher than the minimum breeding pair recovery goal.” FWS chose not to delist the Wyoming segment of the population because that segment “remains in danger of extinction because of inadequate regulatory mechanisms.” Of course, extinction under the ESA is a concept that applies to species or subspecies, not population segments.
Although it is theoretically possible to relist the gray wolf, the practical realities of the ESA make this difficult at best. FWS lacks resources and incentives to list species, and quite a backlog has developed. I did not see any triggers in the Rule that would automatically relist the wolves if the populations fall, for example.
FWS asserts that Montana and Idaho have developed laws, management plans and regulations that “will conserve a recovered wolf population into the foreseeable future.” News of planned public wolf hunts in those states makes a mockery of this assertion.