Proposed bill would strip feds of wolf authority within Montana

2010-11-07T06:00:00Z 2010-11-07T06:10:48Z Proposed bill would strip feds of wolf authority within MontanaBy ROB CHANEY of the Missoulian missoulian.com
November 07, 2010 6:00 am  • 

Montana’s gray wolves already face opponents in federal court and Congress. Soon, the state Legislature may enter the fray as well.

State Sen. Joe Balyeat, R-Bozeman, plans to reintroduce a wolf management bill he fielded in 2009. It would declare that the United States government “lacks authority to impose wolves on Montana,” cancel any existing partnership with the U.S. Fish and Wildlife Service to manage wolves, and demand that “the United States agree in writing to unfettered state management of wolves with no further assertion of federal authority.”

“The wolf issue is decided in court all the time anyway,” Balyeat said in a telephone interview on Friday. “The animal rights people are taking it to court with the judge of their choosing and the issues of their choosing. We’re giving away the home-court advantage. Why not do it on an issue of our choosing and a judge of our choosing? The state’s rights issue is the most winnable issue we have on wolves.”

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In a nutshell, the bill claims Montana’s right to manage wolves trumps the federal government’s authority under the Endangered Species Act. Missoula firearms and hunting advocate Gary Marbut helped draft the legislation.

“It’s still a 10th Amendment exercise to wrest control of wolves out of the hands of the federal government,” Marbut said. “It has been the traditional function of state police power to manage and regulate wildlife within the state. Only in recent times has there been construed authority for the feds to manage wildlife. When the Endangered Species Act has been argued in court, the claim for authority the feds make is the commerce clause. But how many wild wolves have you seen sold across state lines? The answer is zero.”

The commerce clause of the U.S. Constitution gives Congress power to “regulate commerce with foreign nations and among the several states.” The 10th Amendment reserves to the states any powers “not delegated to the United States by the Constitution.” Marbut believes wildlife management is one of the powers the Constitution left to the states.

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Balyeat’s bill made it to second reading in the 2009 Legislature before dying in a standing committee. Montana Department of Fish, Wildlife and Parks legal counsel Bob Lane said he warned then the bill could have the opposite effect it intended.

“We’d make Wyoming look moderate, if not liberal, if that passed,” Lane said from Helena. “That would have totally tied the U.S. Fish and Wildlife Service’s hands in terms of ever qualifying Montana to manage wolves on its own. It was difficult for us to see any scenario where we would regain management authority until that bill was repealed.”

Wyoming’s Legislature passed a wolf management plan that made it a big-game animal in a small part of the state and a shoot-on-sight pest almost everywhere else. The plan was so different from those approved by Montana and Idaho that the Fish and Wildlife Service kept control over Wyoming’s wolves when it delisted them in the other two states in 2009.

That division formed the heart of a lawsuit by 13 environmental groups that sued the federal government last year. They argued wolves can’t be managed according to state boundaries. U.S. District Judge Don Molloy agreed and returned Montana and Idaho wolves to Endangered Species Act protection in August.

The states are challenging that ruling in the 9th U.S. Circuit Court of Appeals. Meanwhile, several members of Congress have drafted bills to remove the wolf from federal oversight.

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Balyeat’s state bill has several other measures that raised eyebrows among constitutional experts. It would make anyone “responsible for inflicting wolves on Montana or preventing state management of wolves” liable for damages to anyone injured or killed by a wolf, including anyone “party to a lawsuit with the purpose of preventing or delaying the implementation of state management of wolves.”

“It’s overstepping the Legislature’s authority to target a specific group, and it would fall flat under equal protection in a heartbeat,” said Jack Tuholske, a visiting professor teaching constitutional law at the University of Montana. “It would also conflict with the First Amendment right to petition the government for redress of grievance. But that’s why we have a court system in our constitutional democracy. Legislatures do foolish things and courts declare them unconstitutional. That’s how the system works and it’s been working pretty well for 230 years.”

Marbut said the legislation followed other “loser pays” provisions.

“There are people who introduced wolves and prevented delisting, who have twisted the truth and fact in order to have their way with the people of Montana,” Marbut said. “That bunch of people is complicit in damaging Montana’s lifestyle and economy and culture. Those people who are responsible and complicit need to have some consequences.”

The bill also includes consequences for wolves. It states if a person is injured or killed by a wolf, “the wolf or wolves involved in the attack are considered likely to be infected with rabies (and) any person may kill any wolf by any means within 100 miles of the alleged attack.”

Mike Meloy, a Helena attorney specializing in constitutional law, said wording like that just weakens the bill.

“I don’t think they have to engage in those kinds of fairy tales to permit somebody to shoot a wolf within 100 miles of a death,” Meloy said. “I don’t think they need to diagnose rabies. All they need to say is the Legislature controls how the wolf is hunted in Montana. The way it is, I don’t understand how they could get to first base in court if someone decided to challenge it.”

But getting to first base could be the least of the legislation’s problems.

Ryan Benson, legal counsel for the multi-state Sportsmen for Fish and Wildlife, said Congress is a faster way to reach a wolf solution.

“Going through the Legislature will essentially require some kind of a lawsuit, and that’s kind of a long pass,” Benson said. “If Congress says the wolf is delisted, it’s effective immediately. And that could happen as soon as next year, where in a court case, you’re looking at several years to get it through the system.”

Reporter Rob Chaney can be reached at 523-5382 or at rchaney@missoulian.com.

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