Feds, environmental groups file arguments on wolf recovery with Molloy

Molloy asked whether the 10(j) rule is even applicable

Parties to the lawsuit challenging the changes made to the 10(j) rule for the experimental, non-essential populations of wolves in Central Idaho and the Greater Yellowstone filed their arguments yesterday. At issue now are not the changes made to the 10(j) rule in 2008 which ease restrictions for killing wolves, but whether or not the 10(j) rule even applies anymore. Judge Molloy questioned the litigants about whether a 10(j) rule was justified because wolves from both the Central Idaho and the Greater Yellowstone populations have essentially become one population with those of Northwest Montana and Northern Idaho north of I-90 which are nonexperimental.

The ESA makes it clear that the 10(j) provisions only apply to populations that are “wholly separate geographically from nonexperimental populations of the same species”.

(j) EXPERIMENTAL POPULATIONS.—(1) For purposes of this subsection, the term “experimental population” means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.

Feds, environmental groups file arguments on wolf recovery with Molloy.
By ROB CHANEY of the Missoulian

Added – Copies of the Briefs ~ be :

Plaintiff’s Response to Show Cause Order

Defendant’s Response to Show Cause Order

State of Idaho (Intervenor) Response to Show Cause Order

State of Wyoming (Intervenor) Response to Show Cause Order

Safari Club (Intervenor) Response to Show Cause Order






  1. nabeki Avatar

    There won’t be a wolf recovery if the US Senate passes the budget bill with Section 1713 intact.

    SEC. 1713. Before the end of the 60-day period beginning on the date of enactment of this division, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other …provision of statute or regulation that applies to issuance of such rule. Such reissuance (including this section) SHALL NOT BE SUBJECT TO JUDICIAL REVIEW.

    There is an emergency right now. Wolves in Montana, Idaho, Washington, Eastern Oregon and parts of Utah could lose their ESA protections next week, WITHOUT JUDICIAL REVIEW. The budget is due to land on the President’s desk, for signing, by March 4th. That’s 8 business days from now!

    Why is nobody discussing this issue? This is the biggest threat to wolves since they were delisted in April 2009. I’m stunned by the silence.

    1. JimT Avatar

      Nabeki, can you tell me where this is in the budget bill? Is it part of a particular Senate or House Bill that is being attached to the CR?

      1. nabeki Avatar


        Bill Summary & Status
        112th Congress (2011 – 2012)


      2. JimT Avatar

        Thanks..I have passed it along to some folks monitoring the process in DC, just in case it slipped by them. Nice Catch~~

      3. nabeki Avatar


        Use this link, the first one didn’t work.


      4. nabeki Avatar

        Great Jim! There’s lots of info on Howling for Justice and Wolf Warriors (FB) on this.

    2. Alan Avatar

      If this passes (and I don’t think it will, because isn’t this the Republican ‘slash and burn’ bill that Obama says he will NOT sign?), then this (SHALL NOT BE SUBJECT TO JUDICIAL REVIEW) will be the FIRST thing challenged in court. Congress can’t simply exempt themselves from judicial review at will. This smells like a hot day on the wharf after the fishing boats have come in. If, by some chance, this does pass muster, it’s too bad the Democrats didn’t drop that little gem on the health care reform bill! If it does it could open up a huge can of worms. There are three branches of government for a reason.

      1. Ken Cole Avatar

        Alan, yes they can. They do it all of the time.

      2. JB Avatar


        To clarify Ken’s comment: Congress CAN exempt provisions of laws from judicial review; however, the constitutionality of laws are always subject to judicial review.

      3. Alan Avatar

        Well, in any case, this discussion is moot because 1) This bill (HR1) is DOA at the White House (and likely in the Senate), and 2) This amendment was not part of the bill as it passed. The following is from the Congressional Record:

        “The gentlewoman from Wyoming is recognized for 5 minutes.

        Mrs. LUMMIS. Mr. Chairman, first of all I want to thank you personally, as well as your colleague from Utah (Mr. Chaffetz) and also Mrs. McMorris Rodgers of Washington, for your work on this amendment.

        The continuing resolution as written would reinstate a 2009 Fish and Wildlife determination that the gray wolf in Montana and Idaho should be removed from the endangered species list. This amendment would replace that 2009 determination with an earlier-approved Fish and Wildlife determination, the one made in 2008, and that expands the scope of delisting of the gray wolf to include the full range of the Northern Rockies wolf.

        Mr. Chairman, after gray wolves were introduced in 1995 into Yellowstone National Park in my home State and placed on the endangered species list under section 10(j), which is the nonessential experimental population section of the Endangered Species Act, a list was determined about what it would take to recover the species, when would we consider it recovered, and it was determined by experts at the time that the recovery would be complete if the population of wolves grew to 300 wolves with at least 30 breeding pairs. That was the target, that was the goal, 300 wolves, 30 breeding pairs.

        So how many wolves are there today, Mr. Chairman? Here we are, 16 years later. There are more than 1,600 wolves and 113 breeding pairs. By every reasonable definition, the wolf has recovered, and yet these wolves remain on the endangered species list. They remain protected, even as they overwhelm and decimate other wild game herds. For example, in the Grovont, the moose population in terms of young calves has declined 90 percent, 90 percent, and it is due to wolf depredation.

        Wolves remain protected in each State because of court determinations, not because of science, and it is now time to be honest about the wolf and its recovery. Its continued inclusion on the endangered species list has everything to do with special interests and emotion and nothing to do with science. Organizations that repeatedly sue the government at taxpayer expense orchestrate these strategies and make people believe that the wolf is not recovered. The simple truth is the wolf is doing very well.

        Lest anyone be confused, my amendment will not create an open season on wolves. It will return management of the wolf populations back to the States, and they are the ones who suffer the effects of the wolves. It will allow for appropriate management of wolf herds, wolf herds by any definition, that have fully recovered.

        So it is time to be honest. It is time to delist.

        Mr. Chairman, I yield back the balance of my time.


        Mr. MORAN. Mr. Chairman, I make a point of order against the amendment because it proposes to change existing law and constitutes legislation in an appropriations bill and therefore violates clause 2 of rule XXI.

        The rule states, in pertinent part, “an amendment to a general appropriation bill shall not be in order if changing existing law.”

        The amendment imposes additional duties beyond what is legislatively authorized.

        So I now ask for a ruling from the Chair.

        The Acting CHAIR. Is there any other Member who wishes to speak to this point of order?

        If not, the Chair will rule.

        The Chair finds that this amendment imposes new duties on the Secretary to reissue a different final rule than is required to be reissued by the pending section. The amendment therefore constitutes additional legislation in violation of clause 2 of rule XXI.

        The point of order is sustained and the amendment is not in order.”

      4. Ken Cole Avatar

        That’s not the same amendment. This one is on HR 1 and was submitted by Simpson of Idaho not Lummis of Wyoming. Her attempt failed but Simpson’s did not.

      5. Ken Cole Avatar

        Also, her amendment would have expanded the delisting rule to Wyoming. The Simpson amendment only applies to wolves in Idaho, Montana, and parts of Utah, Oregon, and Washington but does not apply to Wyoming.

      6. Ken Cole Avatar
      7. Alan Avatar

        Do you have a link to the bill that the Simpson amendment is attached to?
        Here are all the amendments to HR1:http://www.gop.gov/bill/112/1/hr1amendments
        I don’t see it here, just the Lummis one.

      8. Alan Avatar

        Nevermind Ken. This is in the bill itself, apparently, not an amendment.
        Fortunately this entire bill is DOA. It’s all the other bills floating around that we have to worry about.

      1. Alan Avatar

        Ken, can you give an example of another bill that had this attached (not subject to judicial review)?

      2. Ken Cole Avatar

        Just type “not subject to judicial review” into Google and you will all kinds of examples. Trust me, it happens all the time.

      3. Savebears Avatar

        Not that I track it much, but if I had to guess, 75-90 of the bills passed are passed with the attached provision, “Not Subject to Judicial Review”

        People really need to start paying attention..

      4. Ralph Maughan Avatar


        It’s easy to be pessimistic right now, but that is not the case. If a bill says anything about judicial interpretation of it, it most likely will be a statement that the provisions in the bill are “severable” or not.

        A law whose provisions are severable is one that says if one or more sections of it are declared unconstitutional, the remainder, nevertheless, remain in force.

      5. Savebears Avatar


        I am sorry to say, I am VERY pessimistic right now and have been for a few years..I am glad I live a longs ways away from town…

      6. JimT Avatar

        They did it during the spotted owl proceedings as well, exempting some timber sale old growth decisions…

  2. Woody Avatar

    My favorite statement from what I have read so
    far: ” How could a rancher in the 10(j) area know it was suddenly illegal to defend livestock from wolves if the wolves were allowed to change the rules?”

    Since when have wolves changed any rules?

  3. Jerry Black Avatar
    Jerry Black

    For the last 3 days, there’s been quite a bit written about this onerous bill and sec 1713. There’s also been quite a bit of research done by those with legal backgrounds and the conclusion is, YES, Congress can exempt this from judicial review.
    And, for you” Defenders” advocates…they have known about this since Simpson added it to the bill….they seem to want to keep it quiet.

    1. Alan Avatar

      Jerry, I would like to read some of these opinions. Can you provide links?

      1. Jerry Black Avatar
        Jerry Black

        Alan…..the opinions I received are personal emails, but as Ken stated above…if you” google” the subject , there’s plenty of info.

  4. Phil Avatar

    jon: It’s funny how Utah is getting involved with the wolf issue even they have little to no wolves present in their states. I guess they are afraid of wolves eventually coming from the south (Mexican wolves) and the north (Gray wolves) and ambushing their government to take control of it. I would bet they would do better in office the Utah’s current government.

  5. steve c Avatar
    steve c

    I don’t get why they wouldnt attach “not subject to judicial review” to every law passed. It cant be that easy for them to keep the courts away from them.

    1. Savebears Avatar

      Depends on the bill, but yes, Steve, it is that easy..

  6. Ann Sydow Avatar

    We have, what….1700+ wolves in the Northern Rockies right now? This section 1713 would allow them to be taken down to 300. Thats alot of wolves dying. It is imperative that all wolf advocates spread the word about this provision ; we don’t have much time. Call, fax, email, repeat…

    1. Ken Cole Avatar

      I agree, it is urgent to do that.

      1. JimT Avatar

        The groups in DC that have staff up on the Hill whenever they are in session, and then some, are aware of the backdoor efforts. Whether they can get a champion or two in the Senate remains to be see. So, keep the phone calls to the DC offices of folks like Mark and Tom Udall, Michael Bennet, Barbara Boxer…coming. It is especially important that the Udalls continue the legacy of their fathers as strong voices for the wild places and things in the West…

  7. william huard Avatar
    william huard

    These Don Peay types are already claiming victory after Schweitzers rant about killing wolves. On Nabeki’s blog a whitewolf posted a trapshooters email message which had these idiots asking each other which gun they should use to kill wolves. One made the comment-“Now if only we can get hawks delisted.” This would only be the beginning. Every Senator that I contacted said they are taking MANY calls from concerned people about this 1713 section.
    Harry Reid is the Senator that I am the most worried about.

    1. jon Avatar

      William, Don Peay and types like him really do not give a shit about wildlife. They LOVE killing it and they feel it’s their right to do so.


      Look how idiotic some of these people are and their comments.

      “Subject: Wolf Delisting
      From: wireguy
      Date: Fri, Feb 18, 2011 – 07:03 PM ET
      Website Address:
      The entire wolf thing is a look into the black hole mind of the leftist. Only an animal rights whack job could look at what wolves do to wildlife, and the bloody way they do it, and call it a good thing.

      The darkened mind of the leftist is often revealed by their being on both sides of an issue at the same time. In this case they are FOR animal protection rights while being FOR the right of one bloody, violent species to not merely prey, as a raptor preys for food, but to decimate major species. The fact that the wolf does major damage to both ranchers and hunters is merely a coincidence I’m sure.”

      And obvious idiot such as this person lacks common sense and does not understand that it is perfectly natural for wolves to kill other species because they need to in order to survive. They have an anti-predator attitude and they want to be the only “predators” out there managing species. When a wolf kills an elk or deer, they feel that wolf is stealing from them.

      1. Phil Avatar

        jon: So, what do these idiots think wolves should act upon for survival? Should wolves use a knife and fork to cut up the meat? Should wolves eat with a napkin on their laps? These people are not realistic when it comes to how wildlife instinctively survives. “Damage to ranchers and hunters”? Didn’t the Fish and Wildlife show proof that it is only a fraction of livestock predation of the little more then 1% of all livestock deaths are carried out by wolves? I love how these types of hunters try to brown nose to ranchers when it these hunters who do nothing to help ranchers bring in an income.

    2. jon Avatar

      Wolves benefit elk, all of Montana


      “When wolves kill elk to feed themselves, they also feed other animals. Dozens of animals depend on wolves to make the kill. Other animals feed on the carcasses. Though many of these animals are smaller, even the mighty grizzly, which cannot bring down big game as easily as a pack of wolves, is thriving due to its access to wolf kills.”

  8. william huard Avatar
    william huard

    Facts are not important to these people. They are driven by huge egos and a false sense of self-importance. The fact that Don Peay and his supporters make these comments about how wolves are brutal when they kill is so laughable. Conservationists my ass

  9. william huard Avatar
    william huard

    At least wireguy spelled “decimate” right! That has to be a first!!!!!

  10. Brian Ertz Avatar

    Re “not subject to judicial review” …

    if it’s a constitutional matter, Congress can’t preclude judicial review.

    if, as is the case here, a party has standing to seek judicial review of a decision by way of an Act of Congress – i.e. statute – i.e. citizen suit provision of the ESA – or by way of the Administrative Procedure Act – then Congress can certainly revoke that ability to seek judicial review.

    it might be argued that usually, Congress doesn’t preclude judicial review because normally, judicial review involves challenge of the Constitutionality of a statute (Court’s “check” on Congress – which Congress can’t preclude judicial review of anyway) or the administration of a statute (Court’s “check” on Executive) rather than the statute itself – i.e. the President/administration’s interpretation and execution of said statute. Theoretically, Congress would be OK with judicial review of the administration of its statute – checks & balances. Here – delisting would occur by statute rather than rule – i.e. unless it’s unconstitutional, it’s legal.

    1. Alan Avatar

      Yet, without judicial review, who is to decide whether or not something is constitutional? That’s the catch 22.
      Has anyone ever challenged the constitutionality of “no judicial review” itself?

    2. Brian Ertz Avatar

      if a challenge/claim is constitutional in nature, then a person/entity wouldn’t need statutory permission to seek judicial review/remedy. the court would test the claim against a constitutional claim, not against the statute (in this case the ESA or APA).

  11. WM Avatar

    I think some here are trying to make the issue more complicated than it is.

    This has to do with a rule promulgated by FWS in 2008 (of course through its authority under the ESA) delisting the NRM wolves. The bill, as I understand it says (paraphrasing here), that Congress likes the rule as promulgated by FWS and does not want it subject to review by Judge Molloy or any other judge.

    It is a sidestep of actually changing apparently conflicting provisions of the ESA and the rule, by saying we, the Congress, like the rule. Since both the original law and the specific rule in question would be passed by Congress (which clearly has authority to pass laws) and it does not raise issues of Constitutionality, the administrative FWS “rule” now confirmed as law, if it passes, should stand.

    That does not mean the process itself cannot be challenged, but it seems a loser to me.


Ken Cole is a 5th generation Idahoan, an avid fly fisherman, wildlife enthusiast, and photographer. He is the interim Idaho Director for Western Watersheds Project.

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Ken Cole