U.S. District Judge Donald Molloy on Saturday denied a settlement agreement among 10 conservation groups and the U.S. Fish and Wildlife Service, which would have dropped wolves from Endangered Species Act protection in Montana and Idaho.
Had the agreement been upheld by Molloy, it would have allowed a fall hunt of wolves in the two states.
The proposed settlement, announced in March after months of negotiation between the Interior Department and 14 conservation groups, would have dropped ESA protections for Idaho and Montana wolves, in exchange for protection of wolves in Wyoming, Utah, Washington and Oregon. While 10 groups approved the settlement, four were adamantly opposed.
The March deal also called upon USFWS to convene a scientific panel to reexamine the original wolf-recovery goal of 300 wolves. The current tally is based on 705 wolves in Idaho, 566 in Montana, 343 in Wyoming and some 40 in Oregon and Washington.
Molloy’s denial of the settlement places the 1,300 wolves of Montana and Idaho back under ESA protections – for now, but for how long?
The settlement, prompted by concerns over livestock and wildlife losses to wolf predation, was widely viewed as an attempt to preempt Congress from enacting a delisting based on politics, rather than science. Conservation groups were horrified by the prospect of such a precedent, viewing it as a big step toward gutting the ESA. There’s little to no indication that, had the settlement passed muster with Molloy, it could have slowed or halted the Congressional rush to delist northern Rockies wolves.
Montana’s Republican Rep. Denny Rehberg’s H.R. 509 would delist wolves in the lower 48 states. Democratic Montana Sen. Jon Tester and Idaho Republican Rep. Mike Simpson have language in the federal budget bill that would delist Montana and Idaho wolves, turning management over to state game agencies and banning judicial review. Tester said this week he’s confident the rider will pass.
Molloy’s 24-page decision, however, was based on what Congress and the courts have done in the past – not on what Congress can be anticipated to do in the new few days or weeks. Molloy ruled that his court lacked authority to place a partial endangered species population under state management – particularly if that meant exposing that population to the hazard of hunting.
He wrote, “the Court cannot exercise its discretion to allow what Congress forbids.”
Molloy also ruled he couldn’t approve the settlement, without damaging the interests of the four conservation groups that hadn’t gone along on the March deal. The value of the settlement was damaged by internal dissent, he noted.
“When many of the parties do not want settlement it would be inequitable to force them to relinquish their litigation position for a perceived greater public good,” Molloy wrote.
Because the ESA was created by an act of Congress, Congress can do pretty much what it wants, within constitutional limits. And because the Tester/Simpson language is part of a budget package, it might not outlive the budget, unless renewed at some future point. Also, while Rehberg’s bill is drafted, the budget language for the remainder of this fiscal year won’t be known until later this week.
And now that the settlement has fallen apart, all 14 conservation groups are free to litigate wherever they deem prudent.
“We will fight delistings that are supposed to be based on science,” said Bill Snape, senior counsel for the Center for Biological Diversity – one of the 10 conservation groups that joined the settlement. “If Tester really cares about wolves and about settling this problem once and for all, he will embrace and lead the administrative conservation measures identified over the past several months, rather than inflaming the situation further with a bogus political delisting.”
Last month, Jon Marvel, executive director of Western Watersheds, said the settlement had no teeth for enforcement and is filled with vague promises and assurances. Molloy’s ruling essentially agreed with that assessment, noting there was no ceiling to allowable hunting losses and no hard, lower population number that would automatically trigger relisting wolves in Idaho and Montana.
“If Congress passes a wolf rider, it will not be worse than the proposed settlement – just equally bad,” said Marvel. He speculated that the anti-wolf rider could be stopped in Congress, but admitted it was unlikely.
“We have deeply cynical Democrats who are desperate to help Tester in 2012,” said Marvel – desperate enough to sacrifice the integrity of the Endangered Species Act.
Even though the conservation community was deeply divided over the March settlement, “we’ve never stopped talking to each other,” Marvel said. Part of the ongoing conversation is speculation as to whether the judiciary will tolerate a bill that says judges can’t rule on delisting the northern Rockies wolves, he added.