Battle Over Delisting Wolves Heads to Federal Appeals Court

By PHIL TAYLOR of Greenwire

Published: August 9, 2011

Three environmental groups yesterday asked a federal appeals court in San Francisco to overturn a decision to remove federal protections from gray wolves in Montana and Idaho.

The groups Alliance for the Wild Rockies, Friends of the Clearwater and WildEarth Guardians said they filed a notice of appeal to the 9th U.S. Circuit Court of Appeals "to preserve both wolves and the rule of law in the Northern Rockies."
The appeal seeks to reverse a ruling last week by U.S. District Judge Donald Molloy that Congress' decision in April to reinstate the Fish and Wildlife Service's delisting rule is constitutionally sound, despite Molloy's earlier finding that the rule was illegal (Greenwire, Aug. 4).

Molloy said he was troubled that Congress would use a rider to delist a species but that he was constrained by the decisions of earlier courts, including the 9th Circuit.
"Although ruling that he was bound by previous decisions by the 9th Circuit Court, Judge Molloy was very direct in his opinions on the use of nonrelated riders on appropriation bills such as used by Senator [Jon] Tester [D-Mont.]," said Mike Garrity, executive director of the Alliance for the Wild Rockies.
The appeal is the latest volley in an ongoing battle over whether to allow regulated hunting of wolves in Montana and Idaho, while maintaining Endangered Species Act protection in neighboring Wyoming.
Interior last week announced it had reached an agreement with Wyoming to delist wolves in that state, too, as soon as a new management plan is approved by the state's Legislature (E&ENews PM, Aug. 3).
Meanwhile, Montana yesterday began selling wolf licenses for its 2011 harvest season, which will allow hunters to bag up to 220 wolves by year's end and reduce the animal's population in the state by about one-fourth. Idaho will allow an unlimited harvest in most of the state.

Nearly 1,700 wolves roam the three states, far exceeding the government's original recovery goals.
Garrity said the groups' attorneys were considering asking the court for a preliminary injunction to stop the hunts. An opening brief is due Nov. 16.
Garrity pointed to statements in Molloy's ruling that Congress' delisting -- while technically legal because it changed existing law -- is a "a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law."

"We're continuing this battle because Judge Molloy's ruling fully supports our contention that there is a well-established legal process that applies to every other species and that pure political expediency should not be the driving force over which of our nation's imperiled animals and plants will or will not be protected for future generations," Garrity said.

Garrity also noted that the rider's provision barring legal challenges nullifies the U.S. Constitution's guarantee of checks and balances between Congress and the courts.
If their appeal is successful, it would reopen a pending appeal in the 9th Circuit by Montana and Idaho and the federal government challenging Molloy's August 2010 ruling that delisting wolves along state lines is illegal.

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