U.S. Forest Service
They're shooting wolves again in Idaho and Montana, but in Washington we're still trying to figure out how to save them. Gray wolves, hunted to extinction in Washington before World War II, walked back across the borders from British Columbia and Idaho on their own. But if we want them to stick around for future generations, they'll need our forebearance — which the proposed state wolf management plan, currently going through a round of public hearings may — or may not — insure. The state Fish and Wildlife Commission will turn thumbs up or down in December.
Some people think the plan goes too far. Others think it doesn't go far enough.
Five years ago, there was no need for a wolf management plan because — as far as anybody knew — there were no wolves. People had periodically claimed to see or hear them, and finding tracks in the mud beside Ross Lake became an annual event, but there was no evidence that a pack had established itself within the state. Then, in 2008, biologists identified the Lookout Pack, breeding in the Methow Valley. By now — with two new packs identified earlier this year — there are five.
"As of July 2011, there were five confirmed packs in Washington," the management plan explains: "two in Pend Oreille County; one in Stevens/Pend Oreille counties; one in Kittitas County; and one in Okanogan/Chelan counties. Only one of these, in Pend Oreille County, was a successful breeding pair in 2010. There were also indications of single additional packs in the Blue Mountains and North Cascades National Park; and at least a few solitary wolves are also likely to occur in other scattered locations of Washington. Human-related mortality, particularly illegal killing and legal control actions to resolve conflicts, is the largest source of mortality for the species in the northwestern United States and illegal killing has already been documented in Washington."
When the state planning process started, gray wolves were protected as a federally listed species throughout the West. The government initially tried to delist all wolves in the northern Rockies, including the main populations in Montana, Idaho, and Wyoming. All three states had drawn up management plans. Wyoming's was clearly inadequate, so conservationists got an injunction against delisting. The Wyoming government subsequently asked for and received a voluntary remand, so that it could revise the proposal.
In 2009, the feds tried again. They left Wyoming's wolf population on the list. The U.S. Fish and Wildlife Service issued an order delisting gray wolves in Idaho and Montana, plus eastern Washington, eastern Oregon, and Utah. Last year, U.S. District Judge Donald W. Molloy vacated the order, saying it violated the Endangered Species Act. He didn't reach the substantive issues that the plaintiffs had raised about the criteria for wolf recovery, but he didn't have to. The feds couldn't delist a population in only part of its range. “The record in this case implies that the Service tried to find a pragmatic solution to the legal problem raised by the inadequacy of Wyoming's regulatory mechanisms,” Molloy wrote. However, he added, “[e]ven if the Service's solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA.”
The losing side appealed the ruling to the 9th Circuit. Politicians pandering to anti-wolf sentiment weren't willing to entrust the issue to the courts. No one expected a decision before next year, but delisting bills started popping up in Congress last year. This year, the delisting movement gathered steam. The plaintiff groups that had won in Molloy's court could see a legislative solution coming down the tracks, and many of them tried to avoid it through a negotiated settlement. Ten of the fourteen plaintiffs signed onto a settlement that basically suspended Molloy's order in Idaho and Montana. They hoped to avoid the precedent of a Congressional delisting, and hoped to salvage protection for wolves in eastern Washington, eastern Oregon, and Utah.
It didn't work. Molloy rejected the deal. Because not all the plaintiffs were on board, he reasoned, the settlement would damage their interests. And it wouldn't really halt the underlying litigation. And it would permit takings of an endangered species in violation of the Endangered Species Act. Molloy said that "the Court is being asked to make a novel equitable determination: that the wolves of Idaho and Montana are legally endangered, but it would be more equitable to not protect them as such so that they could be taken under the states’ management plans." He explained that "[i]n essence, the Settling Parties are asking the Court to shape a remedy 'that accords with some modicum of common sense and the public weal,' and ignore Congress’ instruction on how an endangered species must be protected."
With settlement off the table, there was no way to avoid Congressional action. A rider to the April law that avoided a government shutdown by authorizing federal expenditures for the rest of the last fiscal year proclaimed that "the Secretary of the Interior shall reissue the final rule published on April 2, 2009.… Such reissuance… shall not be subject to judicial review."
That was that. The Secretary of the Interior reissued the rule. Molloy had no choice. But he wasn't happy about it. "The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law," he wrote.
"The principle behind the rule of law is to provide a mechanism and process to guide and constrain the government’s exercise of power. Political decisions derive their legitimacy from the proper function of the political process within the constraints of limited government, guided by a constitutional structure that acknowledges the importance of the doctrine of Separation of Powers. . . . Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution by avoiding the very debate on issues of political importance said to provide legitimacy."
Some people figured Molloy was giving wolf advocates a blueprint for an appeal. “The Separation of Powers requires us to discern the difference between arguments of policy and arguments of principle," he wrote. "It is the function of Congress to pursue arguments of policy and to adopt legislation or programs fostered by recognizable political determinations. It is the function of the courts to consider arguments of principle in order to enforce a statute, even if the statute itself stems from an altered policy. This distinction holds true, even when the legislative process employed involves legislative prestidigitation.”
Idaho's wolf hunt started on August 30, Montana's on September 3. Wyoming, where wolves remain listed, has been talking with the feds about a wolf management plan that would simply allow people to shoot them on sight in much of the state.
The delisting order took all wolves in eastern Washington off the list. West of Highway 97, where it runs north along the Columbia and Okanogan rivers, they're still a federally protected species. East of the highway, they've lost all federal protection. On both sides of the highway, however, wolves remain protected under state law.
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