Bid to Protect Gray Wolf Heads to 9th Circuit


     (CN) – Environmental groups on Thursday asked the 9th Circuit to reinstate the Northern Rocky Mountain Gray Wolf on the Endangered Species List.
     Last week, a Montana federal judge upheld the constitutionality of a Department of Defense budget rider, which directs the U.S. Fish and Wildlife Service to delist the gray wolf, a species that roams the northern Rocky Mountains through Montana, Idaho, eastern Oregon, eastern Washington and northern Utah.
     “Wolves in the northern Rocky Mountains should be managed by science, not political meddling by Congress,” said Noah Greenwald, endangered species director with the Center for Biological Diversity, in a statement. “This appeal is aimed at restoring needed protections for wolves in these states. Although numbers have risen, the job of wolf recovery is far from complete.”
     Since the ruling, a number of states have set new hunting quotas for wolves, according to appeal filed by the center, Cascadia Wildlands in Eugene, Ore., and the Western Watersheds Project.
     Fish and Wildlife issued a final rule to remove the species from the list in 2009, but a federal judge found that the rule violated the Endangered Species Act by protecting a listed species only across part of its range. The court vacated the rule and the wolves remained protected until the passage of an appropriations bill by Congress this past April. A rider to that bill, which was signed into law by President Barack Obama, directed Fish and Wildlife to reissue the 2009 rule.
     “The wolf rider is a clear example of overreaching by Congress that resulted in the wrongful removal of protections for wolves,” Cascadia Wildlands campaign director Josh Laughlin said in a statement. “The rider is not only a disaster for wolves but for any endangered species that a politician doesn’t like. Congress has set a terrible precedent that we hope to overturn.”
     U.S. District Judge Donald Molloy in Missoula also decried the rider in his Aug. 3 ruling as a “tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.”
     Nonetheless, Molloy determined that he was bound by precedent to uphold the congressional delisting, no matter how much he disagreed with it.
     “If I were not constrained by what I believe is binding precedent from the 9th Circuit, and on-point precedent from other circuits, I would hold [the rider] is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court in U.S. v. Klein,” he wrote. “However, our circuit has interpreted Robertson v. Seattle Audubon Society to hold that so long as Congress uses the words ‘without regard to any other provision of statute or regulation that applies,’ or something similar, then the doctrine of constitutional avoidance requires the court to impose a saving interpretation provided the statute can be fairly interpreted to render it constitutional.”
     “In my view, the 9th Circuit’s deference to Congress threatens the Separation of Powers; nonspecific magic words should not sweep aside constitutional concerns,” Molly added.
     In a brief motion filed Thursday morning, the environmental groups asked the 9th Circuit to take a fresh look at its own precedent.
     The rider “marked the first time that Congress, rather than scientists, took a plant or animal off the endangered species list,” the groups said in a statement released Thursday.

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