Congress Fiddles With Wildlife Management — and Greens Cry Foul

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[This is a guest post by my colleague, TIME reporter Katy Steinmetz:]

One of the collateral matters riding on the budget vote this week was the removal of gray wolves from the endangered species list.  While some of the sound bites in the news were dramatic — “So Congress will be voting Thursday on the fate of more than 1,600 gray wolves in the northwest,” reads one NPR article — the wolves were in this same situation just months ago. The newsworthy issue here is not the delisting itself, but the fact that legislators, instead of protection agency officials, are the ones doing it.

The new legislation —which was tucked into the spending bill and is thus ensured of the President’s signature even if he doesn’t much care for it — restores a 2009 rule issued by the Department of the Interior that delisted wolves in the Northern Rocky Mountain region, which includes small parts of Utah, Washington and Oregon, as well as all of Montana, Idaho and Wyoming. That decision did not mean those states could have a hunting free-for-all and shoot every wolf in sight, from ground or airplane. Rather, it simply turned the management of the animals over to state authorities, provided the plans they developed conformed to the larger Endangered Species Act [ESA]. (Wyoming’s plan failed to do that, so the state was dropped from inclusion in the 2009 rule.)

Not surprisingly, delisting the wolves did not go down easily with conservationists and the move led to  a legal brouhaha, which I outlined  in a June 2010 Swampland post:

When they first sued in June 2009, the coalition of 14 groups led by the Defenders [of Wildlife], which includes the Humane Society and Sierra Club, failed to get a ban on hunting the animals before the inaugural [hunting] season started in the fall. Their primary complaint then was that that the U.S. Fish and Wildlife Service (FWS) was rescinding federal protection “despite significant threats to wolves’ survival,” according to court documents.

But a strong case can be made that the wolf populations as a whole would not be threatened. “Scientifically, the 2009 rule was rock-solid,” says Ed Bangs, who’s been working for the FWS as a wolf recovery coordinator in the Northern Rockies for 23 years. “The wolf population is fully recovered biologically … I mean, wolves are fine. And under state management, they would continue to be biologically fine.”

The court agreed and refused to overturn the rule, so in 2010 the plaintiffs targeted the list-removal process itself. Their argument then was that the FWS couldn’t delist animals in just part of the Northern Rocky Mountain region because it violated the Endangered Species Act, in a procedural way more than a biological one. That argument proved more fruitful. “Even 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,” wrote District Judge Donald W. Molloy. “The northern Rocky Mountain DPS [distinct population segment] must be listed, or delisted, as a distinct population and protected accordingly.” And the rule was set aside.

The most recent measure, put forward by Idaho Republican Rep. Mike Simpson, restores the 2009 rule. But this time, it’s coming with a contentious caveat: The condition that the Congressinal action “shall not be subject to judicial review” is written directly into the law.

“By placing the status of gray wolves off limits to the courts and any sort of legal challenge,” writes  environmental journalist Larry West,  “Simpson’s provision effectively would put Congress in charge of wolf management, making it the final judge of when and whether gray wolves have recovered to a point where they no longer need federal protection.”

The president of Defenders of Wildlife, Rodger Schlickeisen, also articulated this concern. “This is the first time in all of the history of the Endangered Species Act that Congress has ever legislated to remove protection of a species,” he told NPR. “We are, of course, extremely worried that this could represent some kind of a precedent, and the Endangered Species Act could face further onslaught in coming months and coming years.”

It does help that in this case at least, the Congressional policymaking involves an animal that the FWS says has already recovered. If Congress attempted to delist an animal with a different back story, polar bears for example, there would be an entirely different — and much tougher —debate.