PREDATORS -- The battle over the status of gray wolves in Idaho and Montana returns to court Tuesday, where environmental groups will argue Congress overstepped its authority when it stripped the animals of federal protection last May, according to a report by Eric Barker of the Lewiston Tribune.
Two legal scholars who specialize in environmental and constitutional law say the greens face long odds in their effort to reinstate Endangered Species Act protections for wolves.
Read on for the rest of Barker's story.
The groups, which include the Moscow-based Friends of the Clearwater, the WildEarth Guardians, Alliance for the Wild Rockies and the Center for Biological Diversity, claim Congress violated the U.S. Constitution’s separation of powers doctrine when it attached a rider to a federal appropriations bill that delisted wolves. The rider ordered the U.S. Fish and Wildlife Service to re-publish a wolf delisting rule that had been overturned in 2010 by Judge Donald Molloy of Missoula, Mont. The rider also said the rule would not be subject to judicial review.
The groups have argued in court briefs that because the wolf case was being appealed and a decision was pending, the rider unconstitutionally interfered with the judicial branch. Specifically they say the rider “directs an outcome in pending litigation without changing underlying law or providing the courts with new law or standards to apply.”
The rider authored by Rep. Mike Simpson, R-Idaho, and Sen. Jon Tester, D-Montana, makes no reference to the underlying law, the Endangered Species Act. For example, Molloy ruled the delisting rule was illegal because it removed protection for wolves in the Northern Rockies in only a portion of their range, Idaho and Montana, but not in Wyoming. The rider does not explicitly change the ESA to make that legal in either a narrow or broad sense.
The federal government responded in court documents that the action by Congress implicitly amends the ESA by overriding all existing laws that govern wolves and it does not infringe on the authority of the court.
Michael Blumm, a professor at Lewis and Clark Law School in Portland, Ore., said administrative rules, such as the ones that list and delist species under the ESA, can be challenged under the Administrative Procedures Act or the ESA. Since both were authored by Congress, it has jurisdiction over them and because of that it can order a rule exempt from judicial review.
“I don’t think there is a constitutional right to get review over administrative decision-making,” he said.
Or as Dale Goble of the University of Idaho College of Law said, Congress, via Article III of the Constitution, does have some authority over the courts.
“Congress has the power to determine the jurisdiction of the federal courts,” he said. “Obviously there has to be some kind of limit to that, but Congress in the past has redrawn jurisdiction for various and sundry things. Congress can’t override the Bill of Rights, for example, but nobody is claiming any kind of violation of the Bill of Rights.”
Put another way, he said Congress has the power to make law and to direct agencies of the federal government to do things, and that is what the rider does.
“It’s not the normal way things are done but I don’t think it makes it, on its face, unconstitutional,” Goble said.
The rider handed authority over wolves back to the states of Idaho and Montana. Both plan on holding hunting seasons this fall. Montana has set a quota of 220 wolves for its hunt. The Idaho Fish and Game Commission will set wolf hunting rules Thursday. A proposal from Fish and Game would not set wolf hunting quotas in most of the state.