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