The last-minute budget deal that Democrats and Republicans worked out last Friday night may be, as President Obama said, "historic" for more reasons than one. Language in the legislation that may keep the federal government afloat "basically overturns the moral imperative that drove the passage of the Endangered Species Act," says Doug Honnold, managing attorney of Earthjustice's Northern Rockies office.
The language will "delist" wolves in Montana, Idaho, eastern Washington, eastern Oregon and Utah — and will make that delisting unreviewable by the courts. Can Congress really do that? Yes, it can.
To understand the legislative language, you have to start with a little recent history. Everywhere but in Minnesota, wolves have been charter members of the endangered-species list. The government initially tried to delist all wolves in the northern Rockies, including the main populations in Montana, Idaho, and Wyoming. All three states had drawn up management plans. Wyoming's was clearly inadequate. Conservationists got an injunction against delisting. The government subsequently asked for and got a voluntary remand so that it could revise the proposal.
In 2009, the feds tried again. They left Wyoming's wolf population on the list. The U.S. Fish and Wildlife Service issued an order de-listing gray wolves in Idaho and Montana, plus eastern Washington, eastern Oregon, and Utah.
Last year, U.S. District Judge Donald W. Molloy vacated the order, saying it violated the Endangered Species Act. The feds couldn't delist a population in only part of its range. “The record in this case implies that the Service tried to find a pragmatic solution to the legal problem raised by the inadequacy of Wyoming's regulatory mechanisms,” Molloy wrote. However, he added, “[e]ven if the Service's solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA.”
The losing side appealed the ruling to the 9th Circuit. No one expected a decision before next year. Politicians pandering to anti-wolf sentiment weren't willing to entrust the issue to the courts. And the budget legislation gave them a perfect opportunity to take this issue out of the courts' hands.
The plaintiff groups that had won in Molloy's court could see a legislative solution coming down the tracks, and many of them tried to avoid it through a negotiated settlement. Ten of the fourteen plaintiffs signed onto a settlement that basically suspended Molloy's order in Idaho and Montana.
Why? Honnold says that since his clients split on the issue, he can't speak for any of them, but clearly, the groups that backed a settlement did so because of "the fact that there was bipartisan support" for delisting language in Washington, D.C. Basically, he says, "there was a political steamroller coming down the hill." Noah Greenwald, endangered species director for the Center for Biological Diversity, one of the plaintiffs that signed on, explains that indeed, his group hoped to avoid the precedent of a Congressional delisting, and hoped to salvage protection for wolves in eastern Washington, eastern Oregon, and Utah.
Not everyone thought compromise was a good idea. "If you came up with a scenario to undercut the machinations of national environmental groups you couldn’t have done better [than] the real events," Rocky Barker wrote in the Idaho Statesman. He continued:
First, they won a lawsuit that they could not defend politically. Then they tried to get a do-over with a settlement that handed power to the very states they had been saying could not be trusted to manage wolves. Needless to say many of the people who gave hundreds of thousands of dollars to these groups because they love wolves are unhappy and some feel betrayed.
And not all the plaintiffs were willing to settle for half a loaf or less. Barker wrote that "the 10 settling groups could not get minor players … to join them," citing the Friends of the Clearwater and the Alliance for the Wild Rockies. "And the Western Watersheds Project, which has built on its court victories to become a power in the West, joined the intransigents."
That turned out to be a problem when the settlement went before Molloy. Last weekend, he rejected the deal. Because not all the plaintiffs were on board, he reasoned, among other things, that the settlement would damage their interests. And it wouldn't really halt the underlying litigation. And it would permit takings of an endangered species in violation of the Endangered Species Act. Molloy said that "the Court is being asked to make a novel equitable determination: that the wolves of Idaho and Montana are legally endangered but it would be more equitable to not protect them as such so that they could be taken under the states’ management plans."
"In essence," he said, "the Settling Parties are asking the Court to shape a remedy 'that accords with some modicum of common sense and the public weal,' and ignore Congress’ instruction on how an endangered species must be protected. This course seems to run roughshod over Congress’ balancing of the equities regarding endangered species." And it seemed to exceed the court's powers. "The Settling Parties argue that . . . the Court can exercise its discretion and stay its earlier remedy as to wolves in Idaho and Montana," Molloy said. "However, such a determination places the animals in a status which would authorize a “'taking' contrary to the ESA. The Court does not have such unfettered discretion."
With settlement off the table, there was no way to avoid Congressional action. A half dozen wolf delisting bills were introduced last year, and so many proposals were floating around this year that no one was sure until this week exactly how the rider would be worded. Now, it's clear: "[T]he Secretary of the Interior shall reissue the final rule published on April 2, 2009. … Such reissuance … shall not be subject to judicial review." In other words, go on as if Molloy's 2010 decision had never happened. The bill also preserves a different U.S. District Court decision that tells the Fish and Wildlife Service to reexamine its finding that Wyoming's wolf management plan won't cut it.
Sen. Jon Tester (D-Mont.) and Rep. Mike Simpson (R-Idaho) introduced the language. Both parties' leaders signed off on it. Democratic leaders may have hung relatively tough on riders that would have limited the reach of the EPA. But they evidently weren't going to risk much for the wolves.
"We needed to figure out a way to manage these critters just like we manage other wildlife, and this is the way to do it," Tester told The Associated Press. "If you take a look at impacts wolves have had on domestic livestock, on our big game, it is not deniable that it has been extensive."
The extent of wolves' impact on livestock and game is actually a lot more deniable than their impact on politics in the inland West. You can't go wrong by bashing predators. Barker wrote that "with western Democrats like Montana Sen. Jon Tester facing a nearly impossible reelection with wolves under federal protection, Congress will set precedence by delisting a species on a bill that must pass and that environmentalists can’t stop and that they can’t challenge in court."
Now, with Tester's language in the budget bill, advocates for all endangered species face "an unfortunate situation," Greenwald says. When the settlement fell apart, Greenwald said he had hoped that Congressional language would turn out to be at least a bit less draconian. But no. "It's a terrible precedent," Greenwald says. And he can't blame it on the conservatives: "To have a Democrat — to have Senator Tester — doing this is just a disaster."
