Tester expects to attach rider that would delist gray wolves

Montana Sen. Jon Tester expected to successfully attach a wolf-delisting rider to the U.S. Senate's budget bill late Monday night, after a proposed settlement returning the species to state control failed to win court approval.

"We're really not changing the Endangered Species Act," Tester said on Monday. "We're taking a recovered species off (the endangered species list) and putting it under state control for management. We'll manage that wildlife species like we manage all wildlife species, and that's on the state level."

Tester said his legislation would restore a 2009 U.S. Fish and Wildlife Service decision declaring the gray wolf a recovered species in Montana and Idaho, and block that decision from further court review. Rep. Mike Simpson, R-Idaho, has included a similar rider in the House version of the federal budget bill. The must-pass budget bill should reach a final Senate vote on Thursday or Friday.

The rider would leave Wyoming's wolves under federal protection, because that state's proposed management plan hasn't secured the necessary federal approval.

"Wyoming gets to jump in the fray once they get a plan that's approved by the Department of Interior," Tester said. "I don't think when the ESA was initiated, anybody ever contemplated one state would hold another hostage just because it could. What it says to Wyoming is: Tally ho, carry on. If you want to get a plan, you can manage them. If you don't want to get a plan, they're still endangered."

A coalition of 14 environmental groups sued the federal government over that 2009 delisting decision, arguing the northern Rocky Mountains wolf population shouldn't be split along state lines. U.S. District Judge Donald Molloy ruled in their favor Aug. 5.

While the case awaited review before the 9th U.S. Circuit Court of Appeals, 10 members of that coalition negotiated a settlement with the federal government. The deal would have let Montana and Idaho manage their wolves while FWS reworked its delisting rules and implemented better scientific monitoring of the wolf population.

But on Saturday, Molloy refused to give his blessing to the settlement on two main grounds. First, he said he wouldn't go back on his original ruling that the 2009 delisting was legally flawed. And second, the settlement wouldn't satisfy all the parties, especially the four environmental groups that wanted to keep their original court victory.

"In this case, 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 not to protect them as such so they could be taken under the state's management plans," Molloy wrote. "In essence, the settling parties are asking the court to … ignore Congress' instruction on how an endangered species must be protected."

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About 1,700 wolves live in Montana, Idaho and Wyoming. The FWS delisting plan required a minimum of 300 wolves in the three-state area, and agreed with Montana and Idaho state plans that would have kept their populations around 1,000 total animals. The environmental groups argued between 2,000 and 5,000 wolves were needed to provide genetic diversity.

The Alliance for the Wild Rockies was one of the non-settling groups. Director Michael Garrity said as bad as the settlement was, Tester's legislative move would bring a far worse result.

"His solution was to take away our First Amendment right to challenge the government," Garrity said. "His solution is to violate the Constitution. That has broader implications than just wolves."

Jay Tutchton, the WildEarth Guardians attorney representing the non-settling groups, added that preventing further court review proved the government had no good science to delist wolves in the first place.

"They go with a congressional delisting, because they don't have to prove the underlying set of facts," Tutchton said. "They're saying, ‘I don't want any judge to double-check what I've done here.' "

On the other hand, Rocky Mountain Elk Foundation president David Allen said the government's numbers were the proper threshold.

"We're pleased with Judge Molloy's decision to deny this so-called settlement because it was just another stall tactic – a set-up for more legal challenges in the very near future," Allen said in an email statement. "Congress now has an opportunity to grant true management authority to states where gray wolf populations are biologically recovered. We urge lawmakers to respond now to a growing conservation problem."

Tester said his effort to block further legal review would bring predictability to the state management plans. Otherwise, he said, wolf advocates would continue to keep the issue in court.

Those wolf advocates appear united in their opposition to Tester's legislation, too. Natural Resources Defense Council was one of the 10 groups in the settlement group. Its land and wildlife program director, Andrew Wetzler, said he was rallying support in Congress to oppose Tester's rider.

"We may not know who the referee should be, but we know who it shouldn't be, and that's Congress," Wetzler said. "That's like asking a blind man to umpire a baseball game."