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9th Circuit clears amendment that shielded wolf delisting from court review

9th Circuit clears amendment that shielded wolf delisting from court review

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wolf hunting

The Montana Legislature has fast-tracked approval for an expanded wolf hunting season.

Shielding the delisting of Rocky Mountain gray wolves from court review didn’t violate the Constitution’s separation of powers doctrine, the 9th U.S. Circuit Court of Appeals ruled Wednesday.

A three-judge panel unanimously rejected the arguments of several environmental groups that claimed wolves lost their federal Endangered Species Act protection in Montana and Idaho before their populations had recovered. Last year, U.S. Sen. Jon Tester, D-Mont., and U.S. Rep. Mike Simpson, R-Idaho, passed an amendment giving Montana and Idaho wildlife agencies control of wolf populations in their states and blocking further judicial review.

The case pitted the Alliance for the Wild Rockies, Friends of the Clearwater, Wildearth Guardians and the Center for Biological Diversity against the U.S. Department of the Interior and the U.S. Fish and Wildlife Service. The Montana Farm Bureau Federation, Idaho Farm Bureau Federation, Mountain States Legal Foundation, National Rifle Association, Safari Club International and other wildlife groups filed supporting arguments on the government’s side.

The 9th Circuit judges found that Congress changed the law governing wolf management, but did not order courts to make any specific findings, which “does not violate the constitutional separation of powers” between the legislative and judicial branches of government. They also found the Tester-Simpson amendment didn’t repeal any part of the Endangered Species Act, or prevent anyone from challenging wolf management under the existing Fish and Wildlife Service and state policies.

“Review of any regulations issued pursuant to the rule or of agency compliance with the standards, does not appear to be restricted,” the judges wrote. “Section 1713 (the Tester-Simpson amendment), ordering the rule to issue without regard to the laws that might otherwise apply, is entitled to be enforced.”

“Personally, I’m very saddened by this ruling,” said Michael Robinson, a conservation advocate for the Center for Biological Diversity. “We’ve already lost hundreds of wolves before the job of recovery is anywhere complete. And the ecosystem has taken a hit, as well as these wolves are killed.”

Tester was pleased the courts agreed his measure was constitutional.

“This decision is right for Montana because Montana’s wolves are recovered, and they must be managed like other wildlife,” Tester said in an email. “My law is bipartisan, science-based and welcomed by conservationists, hunters and ranchers.”

Montana and Idaho both offered public wolf hunts in 2011. Montana hunters killed 166 wolves, under the legal quota of 220. The season ended Feb. 15.

Idaho hunters and trappers have killed 353 wolves. While a few Idaho hunting districts ended their hunts Dec. 31, most remain open through March 31. The Selway and Lolo districts across the border from Montana’s Bitterroot Mountains allow wolf hunting through June 30. Federal wildlife managers also killed 14 wolves in the Lolo Zone in early February.


In 2009, the Fish and Wildlife Service issued a rule handing over wolf management to Montana and Idaho. A coalition of environmental and conservation groups challenged the rule in U.S. District Court. District Judge Don Molloy allowed a 2009 wolf hunting season to go on, but ruled in 2010 that the government improperly delisted the wolf populations in the two states but not in Wyoming.

Tester and Simpson attached their amendment to the 2011 Defense Appropriations Act, which President Barack Obama signed on April 15. The two-sentence amendment ordered the secretary of the Interior to reissue the 2009 delisting rule “without regard to any other provision of statute or regulation,” and added it “shall not be subject to judicial review.”

Robinson noted that his group and others were in the middle of another 9th Circuit Court challenge to wolf ESA protection when the amendment ended the debate. The groups argued that Congress had no right to tell the judicial system how to decide its cases.

Molloy, in an almost self-contradictory opinion, ruled Congress had the power to keep issues away from the courts.

“If I were not constrained by what I believe is binding precedent ... I would hold Section 1713 is unconstitutional because it violates the Separation of Powers doctrine,” Molloy wrote in his April 3 decision.

“The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider ... is a tearing away, an undermining and a disrespect for the fundamental idea of the rule of law.”

The 9th Circuit judges wrote they found Congress violated the separation of powers doctrine in 1992 when it changed the laws governing logging in northern spotted owl habitat.

“Our court held that (the congressional amendment was illegal when) it directed the court to reach a specific result and make certain factual findings under existing law in connection with the two cases pending in federal court,” the judges wrote.

“The Supreme Court, however, told us the error of our ways,” they added. Congress does have the power to switch existing legal standards with new ones, even while the existing standards are challenged in court.

Advocates of wolf hunting praised the decision.

“I’m hopeful that a congressional act, multiple courtroom defeats and an American public that is clearly tired of this legal wrangling will encourage our opponents to give up and cede responsible wolf management to conservation professionals in each state,” Rocky Mountain Elk Foundation president David Allen said in an email. “But we’ll have to wait and see.”

Gray wolves were declared an endangered species in 1974. Fish and Wildlife Service biologists transplanted a small population of Canadian wolves in and around Yellowstone National Park in 1995 and 1996. Today, an estimated 1,700 wolves inhabit parts of Montana, Idaho and Wyoming, with isolated populations in Washington, Oregon and Utah. Another 4,500 wolves live in the Great Lakes region of the United States.

Reporter Rob Chaney can be reached at 523-5382 or at

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