The Wolf Rider: Playing Favorites When It Comes to Judges

Well, the text of the budget deal is now available and, just as we feared, it includes a rider that will strip wolves of their Endangered Species Act protections in Montana, Idaho, and in parts of Washington, Oregon, and Utah.  Tucked inside (page 290, for those of you following at home) is this:

SEC. 1713. Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) shall not be subject to judicial review and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09–CV–118J and 09–CV–138J on November 18, 2010.

This language is largely identical to what we’ve seen before, with the exception of the last sentence.  That sentence preserves a decision by U.S. District Judge Alan Johnson, which struck down the Fish and Wildlife Service’s rationale for rejecting Wyoming’s wolf management plan--that’s the one that would classify wolves as “predators” in much of the state and allow them to be shot on sight.  On the other hand, the original language is designed to strike down a decision by Judge Donald Molloy, which overturned the Fish and Wildlife Service's rationale for allowing wolves to be delisted in Montana and Idaho.

And that, in a nutshell, is what is wrong with this process.  For the record, I agreed with Judge Molloy’s ruling and I disagreed with Judge Johnson’s opinion.  But what I definitely don’t cotton to is Congress (especially as part of a budget negotiation!) picking and choosing between opinions like this.  We ought to leave the the Endangered Species Act up to the scientists, who carry it out, and to the judiciary, who interpret its meaning.

In fairness, I should note that the Wyoming language does not mandate that the Fish and Wildlife Service accept Wyoming’s wolf management plan. The agency is still free to reject it (or any new plan offered by the State) that doesn’t protect wolves, so long as it is based on a new analysis.  Let’s hope that the Fish and Wildlife Service continues to give Wyoming thorough scrutiny.  At NRDC, we’ll be monitoring the Wyoming process carefully.