Tester’s Wolf Rider Constitutionality Challenged in Court


The blowback from Senator Jon Tester’s Wolf Rider has begun in earnest. Three environmental groups filed lawsuit in federal district court today challenging the constitutionality of his wolf rider.

Alliance for the Wild Rockies, Friends of the Clearwater, and WildEarth Guardians charge in their complaint that the delisting rider violates the U.S. Constitution, as it specifically repeals a judicial decision. While Congress has the right to make and amend laws, the wolf delisting rider (Section 1713 of the budget law, HR 1473, PL 112-10) does not amend the Endangered Species Act. Rather, it orders the reinstatement of the 2009 wolf delisting rule.

“The rider goes against a bedrock principle of our democracy: checks and balances between branches of government,” stated Nicole Rosmarino of WildEarth Guardians. “Legislators can’t pick off specific court decisions they don’t like. That’s not fair for the wolf, and it’s certainly not good for our democracy.”

This debate over the wolf rider is no longer about the issue of wolf reintroduction or science or politics. It is about the role of the three branches of the federal government–checks and balances–and the right of the public to participate in that process, no matter how out of the mainstream those actions may be portrayed in an attempt to intimidate dissenters.

Jon Tester’s wolf rider was merely an attempt by him and his most ardent and vocal supporters to repress dissent among those who would use the processes guaranteed to them by the Constitution and codified in important federal legislation like NEPA and the Endangered Species Act to act on behalf of their constituencies, the mission of the nonprofits they work for, and the principles they advance.

Oregon Governor John Kitzhaber in an April 18, 2011 letter to President Obama weighed in on the issue:

“I write to express serious concern over the inclusion of policy language unrelated to the budget. Specifically, using policy “riders” within the budget to de-list gray wolves in the Northern Rockies region from the federal Endangered Species Act (ESA)… sets a highly undesirable precedent for making decisions on important social and natural resource issues that deserve open and informed debate.

A six-month budget resolution negotiated through backroom discussions is clearly the wrong vehicle to make permanent changes to significant public policy. For nearly 40 years, the Endangered Species Act has assured decisions about our nation’s natural heritage are driven by science, fish and wildlife professionals, and public input. Removing protection for an endangered species by congressional mandate, much less through a budget bill, stands in unprecedented contrast to this history. This action erodes the integrity of the ESA, excludes important public involvement, and usurps the agency structure, established based on a balancing of executive and legislative branch power, that exists to undertake important decisions affecting America’s wildlife.”

Of course, Senator Tester developed his political chops in the Montana State Legislature, a hotbed of extra-constitutional legislating (which has been abundantly documented here at 4&20). One would have hoped that the futility of unconstitutional legislating would have been left behind in Montana when the Senator went to Washington, but that doesn’t appear to have been the case.

This issue will continue to be attacked by those who merely see this as a battle over wolf numbers, or when/how they were delisted (legally or not). But Senator Tester’s having elevated this to a constitutional battle raises the issue to one of majority tyranny: the repression of dissent, as expressed in the right of a vocal and active minority who are willing to challenge the status quo and the forces that maintain them. Those who have been fighting for the wolf have been doing so in a time-honored fashion, and doing it the old fashioned way: through legal public process, which to the chagrin of the majority, includes the judiciary.

Senator Tester’s action to legislate a judicial decision raises a far greater question than one of how to properly delist a species from the Endangered Species Act. And that question is: how far is Congress and mainstream America willing to go to repress the democratic bedrock upon which citizens are allowed to redress their grievances?

“We’re back in court for two reasons,” concluded Mike Garrity, Executive Director of the Alliance for the Wild Rockies. “First and foremost, it’s to continue to protect wolves from indiscriminate slaughter. Second, someone has to stand up when the basic tenets of our government are under attack by unscrupulous politicians.”

Let the armchair lawyering begin…

Update: As Matthew Koehler noted in the comments, The Center for Biological Diversity filed suit in federal court today, also:

Today’s lawsuit is based on Article III of the U.S. Constitution, which establishes the principle of “separation of powers.” This principle dictates that the judicial power of the United States lies in the federal courts and not in Congress. In this case, Congress violated the principle by inserting itself into an ongoing legal case brought by conservation groups over the fate of wolves in the northern Rockies.

  1. Matthew Koehler

    But…but…but…but…there’s an election in 19 months!

  2. I thought Big Bad Tester had already done away with judicial review, JC, and that’s why the wolf rider was so bad!

    It is an interesting case constitutionally. I just think it’s hilarious that half the time this site is calling for populism and yet on environmental issues it sings the praises of the least democratic part of our government.

    • Steve W

      Why did you think that Tester had done away with judicial review, Polish Wolf? Got any basis at all for your belief?

      Why are you opposed to judicial review for populists? Do you believe courts should only be accessible for royalists?

      If that’s all you got that you find hilarious you are more than welcome to your chuckle. What ever floats your boat!

      • “Why did you think that Tester had done away with judicial review, Polish Wolf? Got any basis at all for your belief?”

        I didn’t believe it, which is part of why I didn’t panic when I saw the rider. Matt Koehler, on the other hand:

        “Senator Tester also forever closed the court-house doors and removed the possibility of any judicial review of his wolf rider”

        That’s what I was referring to. And I absolutely think that judicial review is important, and should be available to populists. But I do find it very funny when people talk about populism but then use the courts to combat the will of the populous.

        • Matthew Koehler

          Hey Polish Wolf, thanks for proving JC’s point “Let the armchair lawyering begin…”

          Perhaps you should actually read the actual complaint, which JC has linked above.

          Also, here is the actually language of the rider, which is also in the complaint…see that phrase, “shall not be subject to judicial review?”

          “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. 15213 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.”

        • Steve W

          You believe the will of the populous is to break the constitution?

          They will be sad when they find out that the constitution applies to them as well as to the royalists. Or maybe they will be happy to find that out. I know i would be.

          • No, I believe that those who seek to uphold the constitution, to say nothing of what is objectively right, ought to realize that they will periodically be going against the will of the people, and shouldn’t bandy about populist language if they don’t actually believe it. What’s good for the goose is good for the gander, or in this case, what’s good for the wolf or the woman needing access to an abortion is good for a PAC or a Presidential candidate.

            • Steve W

              You can be both a populist and a constitutionalists. (That’s with a small c)

              In fact, the constitution is a populous document at least as written, if not as instituted.

  3. Melinda Gopher

    …. Montanans voting for an alternative than a man that will run roughshod over the Constitution he takes an oath to defend… after witnessing where and how far he will take this dangerous precedent… will be unconscionable. ….

  4. Melinda Gopher

    so vote for the alternative …. because we the native people will not support this Senator, he is done for.

  5. Matthew Koehler

    Looks like the Center for Biological Diversity also filed a separate suit on constitutional grounds today.


  6. Melinda Gopher

    If any segment of the Democratic party feels they are not being heard, or respected; that disenfranchised group can always start their own party.

  7. Jamie Johns

    I will vote for tester. The Wolves need to be manage. If DOW non lethal methods were working then livestock would not be getting killed. This wasnt Judge Molloy’s call either. The agreement was 100-150 wolves. But I guess that was a lie by the conservation groups. They are not endangered nor going extinct. Beavers are the #1 trapped animal in the US and the Elk are still eating the aspens. Sure coyotes are kept in check but at the cost of everything else. Yellowstone Moose should say it all.

  8. ladybug

    A rider is only made possible by a rule of the senate. A senator making law via a rider is not the least bit interested in informed public debate, or participation by those back home. It’s as anti-democratic as it gets. Had Monana’s senators conducted this important piece of the public’s business in a reasonable fashion, with at least one public hearing, and solicitation of public comments to supplement the public hearing record, it might not be necessary to ask the court for a ruling on this rider’s constitutionality. Haste makes waste. And what a steaming heap of waste it is.

    • Jamie Johns

      They tried and what happened. MT and ID had plans in place to manage the wolves. Judge Molloy said no because of WY. Why should MT and ID be destroyed because of WY. ESA is not perfect. I dont like the way this happened but the relisting was also done in court. All Conservations groups do is sue and complain. The wolves are destroying the elk and deer herds. There is proof. That doesn’t matter to those groups. Put these wolves where they live. Have them kill the family pet and livestock. Guess what, the ranchers are not gettting fully compensated for their losses. Why should a MT sportman have to pay for the losses. Put your money where your mouth is and pay for what you want. Ask any rancher that has had wolf kills. I would ask the rancher before I would ask any conservation group. They are all liars. Proof of this is in anything they say. Remember the original agreement that the states were told by these groups. 100-150 wolves was what the states were told. Way, way, way beyond that now and they are still complaining. If this rider is remove then all other riders for the last 200+ years MUST be removed. That is similar to what Molloy did when he relisted the wolf. There is no reasoning with these groups at all.

  9. Bring on the Wolf tag !

    What a cool trophy it would be to bag one !

  10. It is not so much constitutionality of legalization of wolf killing, as that document is just so much wrapping paper for dime store lawyers. What’s upsetting is the ease with which Democrats are used to accomplish Republican goals. Tester knows that he can do pretty much as he wants, as good-cop-bad-cop works. Democrats really are so scared oF big bad Republicans that they will support anti policy put forth with a “D” by it. This same policy, done by Burns or Rehberg, would infuriate you.

    And that is the tragedy of the system of substituting one business party (in Montana it is called “ranching”) tool in office-holder slots – that we get the same policy in a different wrapper, and that partisans merely change sides on issues depending on the letter after the name. It’s discouraging that Democrats believe that supporting their own is more important than being vigilant citizens.

  11. Repress dissent?

    My apologies for disagreeing. I think there is an easy solution to avoid that in the future.

    • lizard19

      Pogie, did you ever find an answer to the question you posed: how eager are progressives to elect Denny Rehberg?

      • Pretty damned eager, it would appear.

        • lizard19

          equating dissent with support for the opposition is a form of repression. but at least you don’t constantly pick fights and call people you disagree with assholes and question their intelligence. you leave that kind of dirty work for the Pogie-approved antics of Rob Kailey. got it.

          • lizard, no one is repressing you. We are pointing out the likely consequences of your actions. Some people are too set in their ways to change, and yet don’t like the likely consequences of their actions. So they don’t want to hear about it. And then they accuse Pogie and I of ‘repressing them’ by reminding them that the practical effect of their actions is to give Denny Rehberg a nice big promotion.

            • JC

              What is worse PW? A Senator passing unconstitutional legislation? Or us criticizing him for doing so?

              Is an electoral win worth the cost of looking the other way when the Constitution is violated?

              And how would you guys be reacting if it were Rehberg that had pushed this rider through?

              And why should I change to please a handful of “moderates” chasing the center to the right?

              • Matthew Koehler

                Good points Liz and JC. I also can’t help but wonder how those who are giving Senator Tester and his wolf rider cover would be reacting if it was just a GOP wolf rider. I mean, did you see that Idaho is gearing up for aerial shooting of up to 50 wolves on the MT border? I assume these are the wolves that live in the Selway-Bitterroot Wilderness and the wild roadless lands in the upper Lochsa. Shooting packs of wolves from aircraft is like sooooo Sarah Palin.

                SNIPS from a Missoulian article:

                “Idaho officials moved much quicker to put wolves in the crosshairs. The state plans to kill up to 50 wolves along the Montana border, possibly by aerial shooting, while there’s still snow on the ground.

                Idaho had requested permission for such a plan from the federal government while the wolf was still protected under the Endangered Species Act, using what’s known as the 10-J rule. Thursday’s delisting of the wolf made that permission moot. On Friday, the Idaho Statesman reported the state had $50,000 budgeted for aircraft time and could start the killing later this month.”

              • JC – I’ve never once criticized Rep. Rehberg for his wolf policies; I don’t even recall ever criticizing his environmental policies, they I may have. As it turns out, before Tester’s rider, I wrote this http://intelligentdiscontent.com/2011/03/03/predator-droning/

                Where I argue that “Until we get some actual progress on wolf management, wolves will continue to be a convenient way to demonize the ESA and environmental movement in general.”

                Was I wrong? Was I merely jumping on the partisan bandwagon? No. I believe that gray wolves, one of the most widespread mammals on the planet, being protected by the courts in ways that most people who live near them oppose, is an enormous weak spot for the ESA and will continue to sap the support of the environmental movement, and I believe that whether it’s Tester or Rehberg saying it.

    • JC

      You think that it is ok for Senator Tester to pass unconstitutional legislative riders? Or that those who think he has have the right to challenge him and his rider?

      Or should us dissenters just sweep it under the rug in the name of “politics?”

      FWIW Pogie, I was pointing to your blog because I was attacked in it by several commenters who I believe are trying to silence me. I appreciated the civil discussion with you.

      • Actually JC, I’m not a constitutional scholar and so I think this is an interesting case, lets see how it turns out. But I don’t think the continued listing of wolves on the endangered species list in Montana and Idaho is justifiable or politically advisable for the environmental movement.

      • Lets at least keep this nit-picky.

        Tester didn’t write the rider, and he didn’t pass it. Mike Simpson’s office wrote it and he submitted it in the House, Tester in the Senate, and it was passed by Congress, and signed into law by the President.

        Though informed that some of us must accept the legal authority of a Missoula blog, the Constitutionality of the rider has yet to be decided in court. It will be interesting to read the reactions around these parts should the Constitutionality of the rider be upheld.

        It is striking how some of the commenters around here who claim the right to challenge Tester and his rider seem so well equipped to deal with others who challenge them.

  12. Governor Schweitzer: spend a little of your political capital and announce a raffle for biobullets loaded with PZP, DepoProvera, and a dye pellet.

  13. anyone who has any connection to hunting big game in montana knows that schweitzer/tester did the right thing here.

    as an independent i call them as i see them and have no interest in providing “cover” for any politician here. i am however glad that schweitzer/tester got out ahead of this issue before rehberg could claim credit with his far more sanguine bill targeted to make the wolf eliminators happy. as i have said before, delisting was necessary from a logical standpoint. wolves have more than recovered as a viable species in montana. i trust montana’s wildlife biologists to maintain healthy populations of wolves while maintaining a balance that ensures wolves will not become such a problem that the eliminators are able to gain the political upper hand here.

    most quality sport hunt enthusiasts know that sustainable populations of wolves play an important part in the natural selection process which strengthens the gene pool of their prey. but they also understand that when wolves become too prevalent, they can decimate rather than strengthen the herds.

    reason must prevail here and i believe it has.

  1. 1 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 for yourself to get a […]

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