Federal Judge Donald Molloy held his nose and upheld a congressional rider Wednesday that removed Endangered Species Act protections from wolves in Idaho and Montana.
The ruling will allow wolf hunting seasons set to begin next month to proceed as planned.
Molloy, of Missoula, Mont., previously ruled against two federal rules that delisted wolves and scolded Congress Wednesday, saying the so-called wolf rider attached to a federal spending bill last May undermined and disrespected the rule of law.
"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," he wrote.
He said he believes the rider is unconstitutional, but noted he is bound by precedent to the contrary that was set by the 9th U.S. Circuit Court of Appeals. That court found similar moves by Congress did not violate the Separation of Powers Doctrine.
"If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits, I would hold Section 1713 (the wolf rider) is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court."
As Congress debated a spending bill last spring, Rep. Mike Simpson, R-Idaho, and Sen. Jon Tester, D-Mont., attached the rider that ordered the secretary of interior to reissue a 2009 wolf delisting rule that Molloy found in violation of the ESA. It passed both houses and was signed into law by President Barack Obama.
A handful of environmental groups sued, claiming Congress does not have the power to interfere with pending litigation unless it changes the underlying law on which the litigation is based. The rider does not explicitly amend or even mention the ESA.
Attorneys from the Justice Department argued the rider ordered the rule to be reissued "without regard to any other provision of statute or regulation," and that phrase implicitly amended the part of the ESA that Molloy had previously found to stand in the way of wolf delisting.
Molloy said he was bound to adhere to precedent from the 9th Circuit that said such language is enough to amend underlying law and avoid a separation of powers conflict. However, he wrote that he does not agree with the precedent.
"In my view, the Ninth Circuit's deference to Congress threatens the Separation of Powers; nonspecific magic words should not sweep aside constitutional concerns."
Kieran Suckling, executive director of the Center For Biological Diversity, one of the groups that challenged the rider, called the ruling extraordinary.
"I've never seen anything like it," he said. "He is not only intimating the wolf rider is unconstitutional and the 9th Circuit is wrong but he is laying out a road map on how to appeal his own ruling and take it all the way to the Supreme Court. He does everything but buy us a bus ticket to Washington, D.C."
Suckling said the center and other groups have not yet decided if they will appeal.
Idaho Fish and Game Commissioner Fred Trevey of Lewiston called the ruling good news. The commission approved wolf hunting rules last week that do not include a statewide limit on the number of wolves that can be killed.
"It allows us to go forward with the decisions we have made and that is encouraging," he said.
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(c) 2011, Lewiston Tribune, Idaho
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