Montana House Votes to Nullify Endangered Species Act

By Beacon Staff

HELENA – Republicans enthused by Montana Gov. Brian Schweitzer’s recent tough talk on wolves are getting closer to using an ancient “nullification” doctrine to disregard the federal law protecting endangered and threatened species — a plan the governor quickly dismissed as “off base.”

Excited tea party politics in the Legislature have spawned increasing belief in Thomas Jefferson’s late 18th-century “nullification” idea that aims to give states the ultimate say in constitutional matters and let them ban certain federal laws in their borders. Conservatives stoking anti-federal government sentiment are not dissuaded by the legal scholars who say the notion runs afoul of the U.S. Constitution that considers federal law “the supreme law of the land.”

Republicans running the Montana House used their big majority Saturday to endorse nullification of the federal Endangered Species Act in Montana with a 61-39 vote — even though dispatching with the act would cost Montana roughly $1 billion in federal funds that comes with strings attached.

Schweitzer, a Democrat, quickly warned the lawmakers he doesn’t like their idea — even though just days earlier he encouraged ranchers in northern Montana to shoot wolves that harass their livestock and defiantly said state agents may kill packs of endangered wolves.

“Essentially the governor nullified the Endangered Species Act two days ago,” said Republican Rep. Krayton Kerns of Laurel. “That is a very aggressive move. When I look at the articles in the paper I have to think he is on board with what we are trying to do.”

Schweitzer quickly offered clarification after the vote that his bravado in no way meant he would work outside the Endangered Species Act. The governor said he believes federal law gives the flexibility for ranchers to shoot the northern Montana wolves, and said he has the authority to tell state wildlife agents to ignore such wolf shootings. And Schweitzer is now stressing that he will wait for federal permission before state agents take out entire packs of wolves.

“I think the Endangered Species Act in this case has been poorly managed, but I don’t think we need to get rid of the Endangered Species Act,” Schweitzer said. “There are a lot of endangered species in Montana.”

Lawsuits from environmentalists have kept gray wolves in the Northern Rockies on the endangered list even though there are now at least 1,700 wolves in Montana, Idaho, Wyoming, Washington and Oregon, well above the original goal of at least 300 in the region. Montana wants to manage the animals, like it does other wildlife, through regulated hunts.

Supporters of nullification in House debate on Saturday pointed to Jefferson’s words more than 200 years ago when he created the doctrine to express his disgust with the Alien and Sedition Acts that were enacted by then-President John Adams. But constitutional scholars say the idea was just Jefferson’s opinion, and nullification has never worked in the few times it has been invoked since.

“We are still part of the United States of America. Just because we don’t agree with one part of the federal law does not mean we continue to go our own way,” said Schweitzer, a Democrat.

After the vote, the bill was sent to the appropriations committee in the House, which will be tasked with looking at the big price tag. If it gets out of there, it faces an even tougher path in the Senate. And Schweitzer made it clear it probably wouldn’t get past his desk, if it gets that far.

Schweitzer said that Montana benefits greatly in its relationship with the federal government, getting more than $1.50 back in federal money for every dollar state residents and businesses send in tax money to Washington D.C.

“We can’t just choose to opt out when we want,” Schweitzer said. “What kind of civil society would we have?”

Kerns and supporters of ignoring the endangered species act argued that the principle of taking state control of wolves was more important than the billion-dollar hole it would create across several state agencies. The conservatives said the state shouldn’t be taking money from a federal government that is running a big deficit.

“They are bribing us with debt,” Kerns said. “Now is the time to stand up and say no more.”

Minority Democrats blasted the idea on the House floor, the farthest advancing nullification plan so far this legislative session.

“I don’t know where this is going to end. This is the sixth or seventh bill to nullify our participation in the union of the states. The last time I checked we were a member of the United States — and the last time I checked that union was very beneficial to Montana in many ways,” House Minority Leader Jon Sesso of Butte said in floor debate. “This is absolute folly. This bill and every bill like it.”