Sen. Tester Guts ESA; Attaches Policy Rider Delisting Wolves to Budget Bill


Jhwygirl asks the correct question over at Left in the West:

“Congress should be the decision maker? Not science?”

in response to Rob Kailey’s statement in his diary “Donald Molloy Maintains Judicial Integrity” yesterday:

“For the record, this judgment goes beyond a simple defense of wolves in the Northern Rockies. This was a defense of the federal separation of powers and the integrity of the judicial branch. So, the legislative efforts move forward, precisely as Molloy said they should or shouldn’t. That’s up to Congress, as it should be. “

For those who may not be following the story closely, on Saturday, Federal District Court Judge Donald Molloy ruled in a case involving an attempted Settlement Agreement between a coalition of organizations attempting to head off Congressional action over wolf delisting in Montana and Idaho.

That coalition included 10 out of 14 plaintiffs in a lawsuit that had been filed to challenge the way the federal government was going about delisting wolves in Montana, Idaho and Wyoming. The other 4 organizations refused to settle, believing that they had won important legal issues already, and were set to prevail on their Complaint challenging the way the government was proceeding with wolf delisting.

When those 10 organizations discovered that Senator Tester was going to do an end-around the court case by introducing a rider to delist the wolf in Congress, they decided to settle their case with the government as a way to obviate the need for the rider. And on Friday, they were relieved to find that most of the policy riders had been struck from the Continuing Resolution that had been agreed upon that would fund the government for another week.

But on Saturday, Senator Tester indicated that he had reattached his wolf delisting rider to the compromise 2011 budget agreement that is supposed to get worked out this week:

Saturday, April 9, 2011
(U.S. SENATE) – Senator Jon Tester released the following statement regarding the inclusion of his language in a bipartisan budget agreement to delist Montana wolves and return their management to state biologists:

“This wolf fix isn’t about one party’s agenda. It’s about what’s right for Montana and the West—which is why I’ve been working so hard to get this solution passed, and why it has support from all sides. It’s high time for a predictable, practical law that finally delists Montana’s wolves and returns their management to our state—for the sake of Montana jobs, our wildlife, our livestock, and for the sake of wolves themselves.

“I appreciate Representative Mike Simpson’s leadership on this issue in the House of Representatives.”
Rep. Mike Simpson, R-Idaho, is chairman of the House Interior Appropriations Subcommittee.

Congress is expected to approve the overall legislation [this] week.

Also on Saturday, Judge Molloy released his ruling on the Settlement Agreement, essentially denying it, because it was illegal:

Even when the Rule 62.1 procedure is invoked it is not a carte blanche grant of power to the District Court to exercise normative judgement on questions of policy. Rather the District Court is still constrained by the “rule of law.” No matter how useful a course of conduct might be to achieve a certain end, no matter how beneficial or noble the end, the limit of power granted to the District Court must abide by the responsibilities that flow from past political decisions made by the Congress. The law cannot be ignored to accommodate a partial settlement. The rule of law does not afford the District Court the power to decide a legal issue but then at the behest of some of the litigants to reverse course and permit what the Congress has forbidden because some of those interested have sensibly, or for other reasons, decided to lay a dispute to rest.

The question that the 4 non-settling organizations raised was how could the other 10 organizations settle if that agreement would have gone against a Court ruling on the merits of the case that would have had the plaintiffs prevailing? In other words, why settle right before you win, if that settlement is contrary to what the Court may have decided? If you win, you win–you prove your point in court that the government was wrong in choosing its course of action to delist wolves.

Now I return to Jhwygirl’s question in response to Rob’s diary. Rob makes the comment that: “So, the legislative efforts move forward, precisely as Molloy said they should or shouldn’t. That’s up to Congress, as it should be.” Those legislative efforts being precisely those of Senator Tester to insert a policy rider doing an end-around the courts to use the political process to make the decision about delisting a single species–wolves–instead of allowing the scientific process set forward in the Endangered Species Act to follow its course.

Worth noting is that Judge Molloy said “the District Court must abide by the responsibilities that flow from past political decisions made by the Congress.” He didn’t say the Court had any opinion on current or future political actions, and rightly so. Judge Molloy does not rule in a vacuum, unawares of the political environment surrounding this case, and the likely consequences of his actions. The plaintiff organizations do not find it a coincidence that the Judge’s Ruling was released on a saturday, immediately after a Congressional action had stripped the policy rider from the Continuing Resolution.

And as to Jhwygirl’s question, “Congress should be the decision maker? Not science?”, we have Senator Tester making the political decision that Congress’s ability to micromanage science and legal process (NEPA) and circumvent ongoing Court actions with policy riders a more expedient way to manage our nation’s wildlife populations than to allow agencies and the judicial branch to follow their legal avenues to resolution.

The precedent that this sets is horrendous, and no better than the tea party getting its way with policy riders gutting the EPA. What will happen when the grizzly bear gets in the way of a mine in the Kootenai National Forest? The bull trout gets in the way of a coal mine up the North Fork of the Flathead? Will Congress just legislate them right off of the endangered species list?

What we’re seeing with actions like Senator Tester’s is the beginning of the end of the Endangered Species Act. His rider will encourage developers and state governments everywhere to put political pressure on their Congressional reps to “take care of” their local endangered species’ problems. And by attaching his rider, which is in no way related to the budget process, to a must-pass piece of legislation, he adds another bitter pill whose result will be to pit his constituents against each other to further fan the flames of controversy around the already intensely debated budget issue.

There is a reason why Congress’s “past political actions” created the Endangered Species Act and a scientific and legal process to handle the listing, management of, and delisting of imperiled species. It was exactly done to prevent the sorts of actions that Senator Tester is taking: replacing biological science, agency process and judicial remedy with politics.

  1. Turner

    It’s really hard to be an enthusiastic Democrat these days.

  2. CharleyCarp

    It’s a bad idea for Congress to amend the ESA, I agree. But there’s nothing illegitimate about it. We, the humans, can decide that we want to preserve species, or we can decide that we don’t want to preserve species. That’s not a scientific decision, but a moral one.

    • Actually, Charley, it is also a scientific one, one that was answered by the proper authorities given the task (in the Department of the Interior, and that of Agriculture). Kindly notice that, even though he lauds jhwygirl’s question as the right one to ask, JC makes no effort to answer it himself. He also includes “legal process” as valid defense of the NEPA (even though they don’t have the final say regarding the ESA) and the legal process he includes as valid (Molloy) kicked it right back to Congress. That would be those folks who passed the Endangered Species Act in the first place.

      You’re right. This may well be a moral decision. But until somebody bothers to clarify what morality the government agency of Science offers, that may well be a moot point. This is a nation of law, not of sentiment for Science when it serves a purpose of sentiment.

  3. Josh

    I agree with this assessment, change a few words around and you could also be describing Tester’s logging bill (FJRA). This is not good legislating.

    “…we have Senator Tester making the political decision that Congress’s ability to micromanage science and legal process (NEPA) and circumvent ongoing Court actions with policy riders a more expedient way to manage our nation’s wildlife populations than to allow agencies and the judicial branch to follow their legal avenues to resolution.

    The precedent that this sets is horrendous…”

  4. Morality? Sentiment? Huh?
    Species are listed as endangered or threatened based on scientific inquiry, research, and statistics–population size, effective population size, genetic exchange, mortality pressures, available habitat, etc. Further, this isn’t about “amending the ESA,” this is about Tester politicizing the wolf issue and making an exception for Montana which will set a damaging precedent for ALL subsequent ESA considerations, just as he did for Wilderness and forest management with his ill-conceived Forest Jobs & Recreation Act.

    By all means, let’s return control of wolves to state biologists–they’re doing such a fine job with the wolverine, who was found warranted (but precluded) for listing and still Montana allows their trapping, the only state in the lower 48 to do so. And what does he mean, delist wolves “for the sake of Montana jobs”? Wolves have created a booming tourist industry.

    ” And by attaching his rider, which is in no way related to the budget process, to a must-pass piece of legislation, he adds another bitter pill whose result will be to pit his constituents against each other to further fan the flames of controversy…” He may find that there’s a bitter pill for his own self, too, come election time.

  5. ladybug

    The science of wolf control is a mess too. You’ve got the “hook and bullet” biologists on one side, and on the other, biologists with strong evidence that the (kill) level of lethal controls used in 2009 by Montana are far more damaging to wolf populations than the more-elk, more license-fee-dollars crowd estimated.

    Ed Bangs is a biologist, and an assassin with no equal.

    There are fed biologists, state biologists, and damn few outside, independents willing to get in the middle of the usual battle over research funding — private and public. Yes, there is intense politics in science.

    Tester has the right to legislate anything he can get away with. And that’s how he approaches it. Policy, precedent, science, law, and what is best for Montana doesn’t seem to get in his way. It’s really all about his reelection campaign.

    The rest of the world trying to figure out how to protect wildlife and wildlife habitat has looked up to the U.S. since 1973, when the ESA was signed into law by Nixon. Tester could care less. The ripples from his brutish, violent behavior will be felt around the globe. Montana is again famous for something.

    • A link in your defense would be helpful, yes? None? Not necessary? Accusation without support?

      Hardly surprising.

      • lizard19

        why don’t you give ladybug a chance to respond before passing judgement.

        • ? Because I’ve asked so many times with no response that I’m seriously tired of asking. I’m not trying to be a smartass. I’m telling you the truth. No one answers the question, ever. What is this science that we’re supposed to be listening to? If it’s a mess, then what’s wrong with it? Who are these biologists that seemed to sway Judge Molloy, but have no voice in Congress?

          This isn’t about my judgment. That matters not at all, as I’m certain you know. This is about the judgment of others who pronounce with such certainty and can’t, or won’t, support a word of it. Whether you know it or not, I am a great supporter of wolves in the Northern Rockies, since well before Jon Tester ever made it to the US Senate, or JC and others ever made it to the great online. I have also been having the same discussion for years now. Regardless of whether you think I’ve given Ladybug a chance to respond or not, she already has, with no support save claim, and no answer to the fundamental question.

          Here’s the truth of it, and you can verify it with those who think I’m being a total prick here, that is if they’re being honest. The Dept. of the Interior has it’s own biologists, who have the last say in ESA calls. They’ve said that wolves are recovered in the northern tier. The Dept of Agriculture, the Forest Service, with their own biologists concurred. They submitted a proposal to the states in question (Idaho, Wyoming and Montana) to create rational wolf control plans. Idaho and Montana complied, with wolf control plans that were not only rational but rather forgiving of the predation due to the species. These plans were supported by the Defenders of Wildlife who put up enormous amounts of money to support livestock kill due to natural predators in the region. Everybody was on board with this plan … except Wyoming, which had as its only submittal, gut shoot ’em when you see ’em.

          The federal government accepted Montana’s plan, and Idaho’s as rational, and decreed that those states could begin managing wolves. I wasn’t a big fan of those plans given that wolf hunts are ineffective against a high functioning social predator. But they at least offered states a degree of control that could morph into a rational containment. Enter Judge Molloy. He ruled, and probably rightly, that the ESA didn’t differentiate between region, and Wyoming couldn’t be excluded from a control plan, regardless of the SCIENCE.

          Which leads us to now. Judge Molloy has ruled that if the ESA is to be changed, then Congress must do it. Jon Tester, coincidentally a member of Congress, is seeking to do that. And everyone is caterwauling about the SCIENCE, when the science was already decided several years ago.

          Now Ladybug wants to tell us that the science is whatever he/she says with no evidence. I want to see the evidence. I remain confused that you wouldn’t as well. What exactly did I do wrong in asking for evidence not offered before? It’s the same question I’ve been asking since the start of this many years ago. What is the science that is supposed to supersede our law?

          • lizard19

            What exactly did I do wrong in asking for evidence not offered before?

            you really don’t get how the way you phrase your comments can be counterproductive do you.

            you did not merely “ask for evidence.” you assumed ladybug thinks links are unnecessary, then made your snide little “hardly surprising” capper.

            maybe you should get tested for rabies.

  6. i’m no Tester fan on many levels. and can’t wait to see this hayseed out of the Senate – thou it too should be Abandoned with alacrity.

    As for the Wolf: it’s the wrong wolf. The wolf that was replaced was a foot shorter and different order altogether. The smaller wolf fit this niche, This much bigger wolf is a lot more aggressive and demanding on the game around it.
    i just wish that they had planted the Same wolf species instead of the one that is causing this commotion.
    If the G & F were to pay off the damages done by this invasive species to the Ranchers etc their might not be so much consternation but as i understand it – the G&F don’t want to pay MT dollars for Fed destruction – – – so the farmer says “look a Wolf Killed my sheep” and the G&F say “no – there’s no Wolves in the area – it looks like a Coyote killed your sheep – to bad”.

  7. it is not like biologists won’t be involved. i trust the montana wildlife biologists much more than i do federal biologists to maintain viable populations of wolves while keeping a sane balance between predator and prey. i support jon tester here. the ping pong match going on in molloy’s court has gone on too long and hunters and outfitters are tired of it. they want our biologists to sort it out.

    tester would be insane to not do something about this and leave an opening for rehberg to attack him. tester’s rehash of the burns wilderness and forest jobs act was a debacle. but this is sensible legislation given the amount of wolves chasing elk herds into extinction in many areas of western montana. the elk resource is pure gold to montana and needs to be protected just as much as viable populations of wolves need to be protected. but balance needs to be restored. our wildlife biologists are the best in the country and they can do a good job here if we give them the tools.

  8. JC – have the courts ever ruled (based on science) that wolves in the Montana are in danger if the current wolf management plans were implemented? I’m not saying they haven’t; I just wasn’t aware that they had.

  9. Josh

    It’s true that the current state of the wolf controversy is not about science. Molloy’s rulings concern the legal shortcomings of the delisting rule, and the management plans of the states. Tester’s rider is about who controls wolf management, science cannot help with that question.

    Congress certainly has the right to change the ESA, to “move the goalposts” on delisting and to seek to a settlement outside of the courts. But I haven’t heard a credible reason why the situation is so urgent that it must be done right now, in a rider to the budget, without real debate, amendments, or meaningful public involvement.

    Does anyone really think this is a good way to make policy? Tester campaigned against all these practices.

  10. CharleyCarp

    Today’s Missoulian story implies that the rider hasn’t yet been added. Probably just an error, but who knows.

    Looking at the rider, it looks less final (and maybe a little more legally problematic) than represented. I don’t think much of simply requiring the Executive to reissue a legally flawed decision, and then insulating it from review, rather than changing the law under which the decision was flawed. On the other hand, the rider doesn’t preclude petitioning for re-listing, based on new science (or deficient management), and then litigating that.

    If I get bored this afternoon, maybe I’ll re-read the cases on the northern spotted owl riders from the late 80s.

  11. ladybug

    I guess my comments on “the science” made things evern more unclear. The science is unclear because it is science, and it evolves with additional evidence and greater knowledge. It takes time. This always frustrates politics, which is always in one crisis or another. Sorry, no link.

    But the inherent conflict between science and politics has been around for a long time. Copernicus and Galileo had a hell of a time convincing the Vatican that the Earth was not the center of the Universe.

    So, wolves are no different in the sense that we are still learning about wolves as we make political and moral decisions about their continued existence. What we learn is often dictated by who funds the research. Montana funds wolf research. The FS and FWS fund wolf research. Wolf scientists are on high alert right now, and very aware of what the politicians are doing. I can’t prove that politicians and money influences their findings — again no link — but scientists know there is an arbitrary line out there. You cross it, you can start looking for “private” funding. Many quit in frustration. Some will recall the Craighead brothers being run out of Yellowstone NP many years ago. Pressure was applied to MSU biologists when their findings did not agree with MTDFWP’s analysis of the 2009 hunt, and hunting wolves in general. They have been warned. MSU responded courageously, and appropriately in my opinion.

    For those who want simple answers, science is not going to provide for you. There is good science, and bad, or even junk, science. It is not easy to sort out. But it is interesting, no?

  12. Real men shoot dart rifles.

  13. bigbak

    The idea of “popular sovereignty” or the will of the majority is the rule of law in this country. Although Tester’s move to put his rider on a bill that is probably going to pass may be ethically questionable, it is done in the spirit of the majority of his constituents in Montana and he knows that. That is what he was elected to do and to take the measures to do so for Montanans is refreshing and will likely assure him of another term. Hopefully this is not the sole motive for Tester’s movement on this issue, however. I would like to believe, that he, like myself and other Montanans, really believe that this is the right thing to do at the present time in our state and that this decision should be in the hands of the people of this region.

  1. 1 On Principles, Policies and Politicians; Speaking Truth to Power: a Message to You, Jon Tester « 4&20 blackbirds

    […] protected as wilderness under current statutes and management practices; and 2) he inserted the wolf delisting rider into the 2011 Budget […]

  2. 2 Tester’s Wolf Rider Constitutionality Challenged in Court « 4&20 blackbirds

    […] blowback from Senator Jon Tester’s Wolf Rider has begun in earnest. Three environmental groups filed lawsuit in federal district court today […]

  3. 3 Judge Molloy “Would Hold” Senator Tester’s Wolf Rider Unconstitutional, Maps Appeal to SCOTUS if Needed « 4&20 blackbirds

    […] had much to say here and elsewhere about Senator Tester’s use of riders to pass policy and this court case, so I won’t go there again. You can read the Judge’s Final Order […]

  4. 4 Quora

    Why is wolf hunting occurring in Minnesota this year?…

    There are many reasons why wolves are being hunted across the US (and of course in MN) currently. However, the real reasons for the delisting have much less to do with science than with special interests lobbying for the wolf hunt and back-office polit…

  5. 5 Senator Tester continues to sell out wolves – a&*A$&$%!!! | Green Belief

    […] link here […]

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