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Northern Rocky Mountains gray wolf
Restoring the gray wolf
Great Falls Tribune, August 4, 2011

Montana judge upholds Congress' change to wolf status

HELENA — The way Congress went about removing endangered species protections from the Northern Rockies gray wolf undermines the rule of law, but it did not violate the Constitution, a federal judge ruled Wednesday.

U.S. District Judge Donald Molloy reluctantly upheld a budget rider passed by Congress in April that stripped wolves of federal protections in Montana, Idaho and parts of Washington, Oregon and Utah.

The provision was inserted by Republican Rep. Mike Simpson of Idaho and Democratic Sen. Jon Tester of Montana. The measure marked the first time since the passage of the Endangered Species Act in 1973 that Congress forcibly removed protections from a plant or animal.

Molloy, who twice blocked attempts to lift federal protections for the predators before Congress' action, did not hide his distaste for the provision.

"The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining and a disrespect for the fundamental idea of the rule of law," Molloy wrote in his order.

But, he added, past rulings by the 9th U.S. Circuit Court of Appeals requires him to interpret the rider as not violating the separation of powers, the constitutional principle ensuring none of the three branches of government tramples on the independence of the other branches.

Conservation groups had challenged the rider's constitutionality, arguing that it violated the separation of powers because its only aim was to countermand Molloy's past rulings without making any changes to the Endangered Species Act.

But the judge ruled against them, upholding the congressional rider because of what Molloy called "magic words" included in it.

The budget rider directed the Interior secretary to remove wolf protections "without regard to any other provision of statute or regulation that applies to issuance of such rule."

The use of that exact phrase amends the Endangered Species Act by implication, Department of Justice attorneys argued, even if the rider didn't reference the specific law.

Molloy said the 9th Circuit has upheld that interpretation in the past so he must abide by it, even though he clearly disagrees with the appellate court.

"In my view, the 9th Circuit's deference to Congress threatens the Separation of Powers; nonspecific magic words should not sweep aside constitutional concerns," Molloy wrote.

It was not immediately clear whether the conservation groups planned to appeal Molloy's ruling. Kieran Suckling, the executive director for the lead plaintiff in the case, the Center for Biological Diversity, said an appeal to the 9th Circuit is likely.

Molloy's order lays out a road map for a possible appeal, with the judge saying he believes Congress acted unconstitutionally but case law forces him to rule otherwise, Suckling said.

"He did everything but buy us a bus ticket to San Francisco," Suckling said, referring to the appellate court's location. "That gives us hope that this isn't dead yet."

Congress' actions turned over wolf management to the Northern Rocky Mountain states except for Wyoming. There are an estimated 1,651 in Idaho, Montana, Wyoming, Oregon and Washington.

Idaho and Montana are planning to hold wolf hunts this fall to reduce the populations of the predator in those states.

Tester said in a statement that now that the court has made its ruling, it's time to move ahead.

"Returning Montana's wolves to Montana management was the right thing to do, and we did it in a responsible way with utmost respect to existing law and to our Constitution," he said.

Wolves in Wyoming were not included in the budget rider due to concerns among federal officials over a law allowing the predators to be shot on sight across most of the state.

But earlier Wednesday, the state and the U.S. Department of Interior reached an agreement over how to end federal protections for wolves there.

Copyright © 2011 www.greatfallstribune.com.

This article originally appeared here.

Photo © Paul S. Hamilton