By Rob Wood
The gray wolf was one of the first species listed under the 1973 Endangered Species Act (ESA). On May 5, it joined the small but distinguished group of “megafauna” that have successfully recovered from near-extinction under the ESA, including the American alligator, the bald eagle, and the whooping crane. But this isn’t the first time the charismatic and ruthless hunter has been delisted. In 2009, the U.S. Fish and Wildlife Service (FWS) struck the canine from its ledger, too – the beginning of a strange saga that draws new attention to questions about the practicality of the ESA, the role of Congress and the courts in administrative decision-making, and what the future has in store for an icon of the American frontier.
Shortly before leaving office, President George W. Bush instructed FWS to begin the process of removing the Northern Rocky Mountain gray wolf – a “distinct population segment” (DPS) that can be protected and regulated separately from the species as a whole – from the endangered species list. President Obama ordered new Department of the Interior Secretary Ken Salazar to review the decision, and Salazar found that the proposed rule rested on legitimate grounds: the wolf, after all, had grown to a population five times larger than the minimum goal first outlined in its recovery plan. They moved forward with the official delisting rule in April 2009, mandating that the Northern Rocky Mountain DPS be removed from federal protection in every section of its range except for Wyoming, where existing state regulations were deemed insufficient to ensure the continued recovery of the animal (an ESA delisting requirement).
However, the ESA also states that the government cannot choose to protect only a portion of a species (or in this case, a portion of a DPS) – it must protect either all of none of them. The rule was challenged on these grounds in the Montana district federal court, and vacated in August 2010 on the basis of its violation of this provision.
The federal defendants in the case, along with the states of Idaho and Montana, appealed the ruling. But in April 2011, while litigation on the issue remained ongoing, a group of senators led by Jon Tester of Montana decided to take matters into their own hands, attaching a rider to the Defense Department’s continuing appropriations bill stating that “the Secretary of the Interior shall reissue the final rule published on April 2, 2009…without regard to any other provision of statute or regulation that applies to issuance of such rule.” Following this congressional directive signed into law by President Obama, FWS reissued the 2009 rule on May 5, 2011, complete with the original exception for Wyoming. Secretary Salazar called the rule “another success story of the Endangered Species Act.”
Within weeks, the rule found its way back to the same Montana district court, where it was challenged on the grounds of violating the constitutional separation of powers, as “Congress does not have the power to interfere with pending litigation unless it changes the underlying law on which the litigation is based.” Arguing that the appropriations bill rider does not “explicitly amend or even mention the ESA,” the plaintiffs claimed that Congress had interfered with a decision reserved for the judicial branch. This time, the Montana judge ruled in favor of the government defendants, stating that the rider’s special language – “without regard to any other provision of statute or regulation” – served as an implicit amendment to the ESA. The judge’s decision was not without serious reservation, however, as he called the congressional action “a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law,” and implied that had he not been bound by precedent, he would have found in favor of the plaintiffs. As expected, the plaintiffs have appealed the ruling, and it looks as if the case may make it to the Supreme Court next year.
In the meantime, hunting season has opened in Idaho and Montana. For the first time in nearly four decades, citizens will be granted permits to kill the once nearly-decimated wolves. It has been reported that Idaho will allow the killing of 220 of its estimated population of 850, while Montana will permit the killing of 75. Defenders of Wildlife, an environmental advocacy organization, is currently seeking a court injunction to halt the hunting until the issue has fully played out in the courts.
This back-and-forth battle raises serious concerns. The spirit of the ESA is relatively straightforward: to prevent the extinction and promote the recovery of endangered plants and animals. If the wolf has recovered, let it off the list. But the act of listing and delisting has become too politicized to ensure fair outcomes. We should be able to trust civil servants at FWS – kept honest by the public comment process – to make good decisions. But the inevitable politicization of the bureaucracy and its shifting priorities from administration to administration leads to inherent distrust from groups such as Defenders of Wildlife, who will look for ways to delegitimize bureaucratic decisions, while congresspeople and senators representing the interests of their constituents will seek avenues for circumventing the process altogether. Meanwhile, the species we are charged with protecting carry on unawares, subjected to whatever fate our process brings upon them. Perhaps this is reason for another round of amendments to the ESA or, perhaps, for a reevaluation of the process altogether.
Established in 1995, the Georgetown Public Policy Review is the McCourt School of Public Policy’s nonpartisan, graduate student-run publication. Our mission is to provide an outlet for innovative new thinkers and established policymakers to offer perspectives on the politics and policies that shape our nation and our world.