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PRESS RELEASE - August 8, 2011

CONTACT: Michael Garrity, Executive Director, Alliance for the Wild Rockies, 406 459-5936

Conservation Groups Appeal Federal District Court wolf decision

"We still believe that Congress violated the U.S. Constitution when Senator Jon Tester (D-Montana) used a rider to overturn the Federal Court's decision," said Mike Garrity, Executive Director of the Alliance for the Wild Rockies. "We will not allow the fate of endangered species to be determined by politicians serving special interests. These decisions must be based on science, not politics, and Congress has never before removed species from the Endangered Species list by political fiat."

Citing the wording from Federal Judge Donald Molloy's recent ruling, Garrity said the Alliance and it's co-Plaintiffs, Friends of the Clearwater and WildEarth Guardians, have filed an Appeal to the U.S. Ninth Circuit Court of Appeals "to preserve both wolves and the rule of law in the Northern Rockies."

"Although ruling that he was bound by previous decisions by the Ninth Circuit Court, Judge Molloy was very direct in his opinions on the use of non-related riders on appropriation bills such as used by Senator Tester," Garrity continued. "Take, for example, these quotes directly from Molloy's opinion."

  • "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."
  • "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. That legitimacy is enhanced by a meaningful, predictable, and transparent process."
  • "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. Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders to legislation that must be passed."

"We're continuing this battle because Judge Molloy's ruling fully supports our contention that there is a well-established legal process that applies to every other species and that pure political expediency should not be the driving force over which of our nation's imperiled animals and plants will or will not be protected for future generations," Garrity explained.

The groups charge in their complaint that the delisting rider, which was sponsored by Montana U.S. Senator Jon Tester and Idaho Representative Mike Simpson, violates the U.S. Constitution because it specifically repeals a judicial decision and then exempts it from judicial review.

"While Congress absolutely has the right to make and amend laws, the wolf delisting rider (Section 1713 of the budget law, PL 112-10) does not amend the Endangered Species Act -- it circumvents the judicial process by ordering the reinstatement of the 2009 rule that delisted wolves," Garrity continued. "Moreover, by exempting it from judicial review it basically nullifies the Constitutional checks and balances between Congress and the Judicial Branch of government."

"There's little doubt that wolves are now facing drastic policies at the state level,' Garrity said. "Wyoming has a 'shoot on sight' policy, Idaho just enacted a massive "open season' that will kill hundreds of wolves and Montana announced it will allow up to 220 of the 566 wolves in the state to be killed this year — nearly half of the wolves to be shot by hunters and an unlimited amount to be killed by government trappers."

"We are doing all we can to hold back the tide of wolf-killing in Montana, Idaho, and elsewhere in the Northern Rockies," explained Garrity. "This ecologically important species is being unfairly targeted out of ignorance and intolerance and now lack a federal shield from being killed."

"But in the end, this is not just about wolves, it's about the rule of law. If Congress can exempt this decision from judicial review, it can likewise exempt anything it does. That not only spells disaster for endangered species, but for our entire form of government. Judge Molloy hit the nail on the head when he said Tester's rider is "a talisman that ipso facto sweeps aside Separation of Powers concerns."

"We agree with him," concluded Garrity, pointing to Molloy's conclusion that reads: "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 [Tester's rider] is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court in U.S. v. Klein."

"We think, given the circumstances and the gravity of the Separation of Powers issue, that the Ninth Circuit will want to take a close look at the consequences of allowing Senator Tester's unprecedented wolf rider to stand. And we intend to give them that opportunity with our Appeal."

Please find the notice of appeal attached.

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Alliance for the Wild Rockies     P.O. Box 505 • Helena, Montana 59624
406-459-5936    •    awr@wildrockiesalliance.org

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