Well, sporties, are you ready for 4,200 to 7,300 wolves in the Northern Rockies?
Back in April, you’ll remember that Congress stuffed a “bipartisan” rider (Section 1713) into the 2011 Appropriations omnibus (Public Law 112-10). This rider supposedly de-listed Rocky Mountain gray wolves outside Wyoming, by reinstating the U.S. Fish and Wildlife Service’s (FWS) so called “2009 Rule,” shot down by federal judge Donald W. Molloy last August.
Section 1713 went into effect May 5. The same day, two lawsuits were filed before Molloy by Alliance for the Wild Rockies (AWR)/Wild Earth Guardians (WIGs) and Center for Biological Diversity (CBD). In their complaint, CBD declares a minimum viable population level of, yep, up to 7,300 wolves in the Rockies.
Besides that hint of where Greens hope to move the goalposts next, more important is CBD’s central allegation: Congress “impermissibly direct[ed] certain findings in pending litigation without changing the underlying law,” and therefore is “in violation of the separation of powers” doctrine in Article III of the U.S. Constitution.
The plaintiffs appear to have a case, at least technically – which is enough. Section 1713 is purely administrative, not changing a single word of the Endangered Species Act, the “underlying law.” Furthermore, the two combined lawsuits Section 1713 spiked are still live, under appeal to the Ninth Circuit Court – the numerous eco-plaintiffs did not move for dismissal, plus Judge Molloy has not yet ruled on the related 10(j) case I wrote about before.
How much merit, or risk, lies in arguments invoking separation of powers? Well, about a zillion ranching and sportsmen groups filed to intervene to uphold (and Greens to overturn) Section 1713’s mandate, at least in part because they justifiably don’t have much confidence in the ability or desire of the government to defend Section 1713.
But on June 2 (warp speed in court time) Judge Molloy issued a boilerplate denial to all possible intervenors in the AWR/WIGs/CBD case, writing “Differing litigation strategies do not normally justify intervention and no showing has been made that Federal Defendants will neglect a necessary element in the proceeding.” Molloy further declared allowing intervenors would “not further efficient resolution of the case” – a signal he’s got a fast fuse on what is sure to be political dynamite.
Keep in mind that 2011 saw a blizzard of settlement attempts, case dismissals, and other legal whatnot: In March, we not only witnessed USFWS dismiss its wolf lawsuit against Wyoming, but also the failed “settlement” in the “10j” case. On May 5, the same day the 2009 Rule went into effect and was sued against, USFWS announced the start of the delisting process for Great Lakes wolves. On May 10, USFWS announced a “settlement” of over 1,200 species listing petitions (which have overwhelmed USFWS) filed by both WIGs and CBD since 2007. WIGs settled, but CBD backed out and the judge in that case stayed the settlement until June 20.
What’s the bottom line of all this? Damage control. As CBD honcho Keiran Suckling told The Associated Press regarding CBD’s part in the failed March settlement, settling was “the best step in a political strategy to head off disastrous congressional action.” In other words, prevent Congress from any alteration of the Endangered Species Act.
Yet, all that strategizing might be in vain, ironically enough thanks in huge part to this latest lawsuit from CBD’s master strategists.
Judge Molloy is about to take senior status. He was just big-footed by Congress on two, and probably three live court cases. If Molloy declares the Green plaintiffs correct, that Congress’s failure to alter the “underlying law” is unconstitutional, we’ll see wolves re-listed – until Congress acts to change the law.
So, while CBD and its co-plaintiffs seem oblivious to the risks, other environmental groups are horrified. One spokesman for a “moderate” environmental group declared to the Missoulian that “I fear more perhaps for the Endangered Species Act being damaged by furthering this discussion in this way.”
I never imagined I’d say this, but for once, here’s a case extremist Greens hugely deserve to win – even more howling insanity, hopefully the end.
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