Ninth Circuit Denies Request to Re-Instate ESA Protections for the Gray Wolf Pending Appeal
Posted in Litigation

On August 25, 2011, the United States Court of Appeals for the Ninth Circuit denied (pdf) an emergency motion for an injunction pending appeal to re-instate Endangered Species Act (ESA) protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. Environmental groups appealed the case to the Ninth Circuit on August 13, 2011, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service (Service) to reissue a 2009 rule that removed ESA restrictions on the gray wolf, except in the state of Wyoming. The same rule was determined by a district court to be illegal in 2010.

In the emergency motion, the environmental groups asserted (pdf), among other things, that the legislation violated the separation-of-powers clause of the United States Constitution because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. The Service asserted (pdf) that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states.

The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. According to the environmental groups, Idaho plans to start its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.

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Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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