For 10 years, the U.S. Fish and Wildlife Service (FWS) tried to strip the northern Rocky Mountains' gray wolves of their Endangered Species Act (ESA) protection. FWS repeatedly failed.
Congress, unlike FWS, isn't bound by the Administrative Procedures Act, so Rep. Mike Simpson (R-IA) and Sen. Jon Tester (D-MT) got the job done by creating a new law. The pair attached a rider, Section 1713, to the Department of Defense and Full-Year Continuing Appropriations Act of 2011, which removed the wolves' ESA protection.
Because what better way is there to promote wolf-killing than through a defense budget bill?
Wolf enthusiasts were none-too-pleased with this tactic, and sued Interior Secretary Ken Salazar to prevent the delisting. Today, the Ninth Circuit Court of Appeals ruled that Congress acted within its authority to legislate the wolves out of ESA protection.
Wolves were placed on the endangered list in 1974. Over the next 20 years, state and federal agencies spent more than $100 million on wolf restoration programs, according to The Associated Press. After the wolf population satisfied recovery goals, the FWS -- and then Congress -- took actions to remove the wolves' ESA protection.
Alliance for the Wild Rockies, the plaintiffs, sued to stop the delisting under a separation of powers theory stemming from the Supreme Court's 1871 decision United States v. Klein. In Klein, the Court struck down an act of Congress that dictated the result in pending litigation. The Alliance suggested that the same fate should befall the wolf rider because there was pending litigation regarding an FWS attempt to delist the wolves at the time the budget bill legislated removing ESA protection.
The Ninth Circuit Court of Appeals, however, noted that Klein "has remained an isolated Supreme Court application of the separation of powers doctrine." When the Ninth Circuit relied on Klein in Seattle Audubon Society v. Robertson, the Supreme Court reversed the decision, holding that amending or changing environmental laws applicable to a specific case did not violate the constitutional prerogative of the courts.
It seems like the Ninth Circuit learned its lesson, because the court upheld the wolf rider. Noting that Section 1713 amended the law instead of repealing it, the court held that the delisting direction did not violate the separation of powers.
The friends of the wolves are disappointed, but they have not yet decided if they will appeal to the Supreme Court. You know what that means: If you want to take a shot at wolf hunting, you should do it before the Nine have a chance to reverse this decision.
Wolf hunting is allowed in Montana and Idaho and could resume in Wyoming this fall, reports the AP.
- Alliance for the Wild Rockies v. Salazar (Ninth Circuit Court of Appeals)
- As Gray Wolves Return, So Does Debate Over Hunting (NPR)
- Endangered No More: Legal Implications Of Life After The List (FindLaw)
- Lions, Wolves Roam Zanesville, Ohio Streets (FindLaw's Blotter)