Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

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On August 3, 2011, a federal judge upheld (pdf) a congressional budget rider that removed Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. The legislation was included as part of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (pdf) (H.R. 1473) (the Act), which was passed by Congress and signed by the President in April 2011. Section 1713 of the Act directed the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except for in the state of Wyoming. The same rule was determined by a district court to be illegal in 2010. The rider was authored by Rep. Mike Simpson (R-Idaho) and Sen. Jon Tester (D-Mont).

Environmental groups challenged the legislation on the grounds that Congress had violated the separation-of-powers clause of the United States Constitution because it ordered an outcome in ongoing litigation without amending the underlying law and blocked judicial review, effectively negating the role of the judiciary. The Service argued that the rider was properly within the scope of Congress’ authority because it did, in fact, amend the ESA by making gray wolves an exception. The rider, however, does not reference the ESA, and only references the Service’s 2009 rule.

Unsurprisingly, in his decision, U.S. District Judge Donald Molloy upheld the statute.  But he opined that the “way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the [Act] is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.” The judge further argued that the rider “sacrifices the spirit of the ESA to appease a vocal political faction, but the wisdom of that choice is not now before this Court.”