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Amendment delisting gray wolves faces court challenge Tuesday

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The congressional rider removing gray wolves from Endangered Species Act protection faces a court challenge in Missoula on Tuesday.

The Alliance for the Wild Rockies, Center for Biological Diversity, Friends of the Clearwater and WildEarth Guardians together claim Congress violated the U.S. Constitution's separation of powers doctrine when it ordered the wolf delisted and blocked future court review of that decision.

In response, attorneys for Interior Secretary Ken Salazar say Congress has frequently rewritten laws to get around court rulings, and courts have endorsed the practice.

U.S. District Judge Don Molloy will hear both sides' arguments for summary judgment on Tuesday at 9:30 a.m. in his Missoula courtroom. Center for Biological Diversity attorney Christopher Karr said each side will have an hour to make its claims.

Last August, Molloy ruled the U.S. Fish and Wildlife Service acted improperly by delisting wolves in Montana and Idaho but not Wyoming. He said the Endangered Species Act didn't allow such political boundaries to determine how a free-roaming species is managed.

In April, Congress passed a rider to its appropriations bill co-written by Sens. Jon Tester, D-Mont., and Mike Simpson, R-Idaho, directing the agency to reissue its 2009 wolf delisting order. Montana and Idaho wildlife authorities now manage wolves in those states, and have authorized wolf hunting seasons for this fall.

In their court filings, pro-wolf attorney Karr argued that the congressional rider was "the only time, in the ESA's nearly 40-year history, that Congress has legislatively delisted a species." That maneuver unconstitutionally interferes with the judicial branch's power to review congressional action and forces a court decision without changing the underlying law, he claimed.

In response, federal government attorney Ignacia Moreno cited numerous other examples where Congress passed laws that prohibited further judicial review.

"(N)othing ... precludes Congress from effectively pre-ordaining results in pending litigation by shifting the legal goalposts when the evidentiary football has come to rest," Moreno wrote. And while the rider didn't explicitly amend the Endangered Species Act, Moreno said it did legally change the way the act manages "a subset of a particular species, in particular regions."

The wolf advocates want the rider declared unconstitutional and the gray wolf returned to federal protection in Montana and Idaho.

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