7-month spending bill likely to reach the floor of the Senate tomorrow

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Tester amends federal budget bill to declare wolves recovered in Montana, Idaho.
By ROB CHANEY of the Missoulian

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About The Author

Ken Cole

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. We do not accept unsolicited “guest” authors or advertising.

71 Responses to Tester amends federal budget bill to declare wolves recovered in Montana, Idaho

  1. Phil says:

    This is just a joke, but I have emailed and called my senators so many times that they are probably not going to accept my email addess or phone number in responding to anymore. But, it is worh it in my opinion.

  2. JimT says:

    I have called and emailed and posted on Udall’s website; I have yet to see a position statement from Mark on this, and very very puzzled about this especially given his family. I can only surmise that Salazar has exerted some kind of pressure on the Colorado Senators, and the WH is backing him because they want to keep the Dem seat of Tester..which is probably a lost cause. I don’t see them voting this CR down if they allowed the amendment….This will be incredibly tragic for Wolves and the ESA if it happens…

    • Phil says:

      Jim: I hope you are wrong on what you stated. I called Uall on Saturday and left a message on his DC office. I thought Udall is a senator from New Mexico?

    • william huard says:

      All we can hope is that REID allowed the amendment for TESTER to show on behalf of his constituent ranchers and outfitters that he is attempting a legislative solution. He as majority leader can strip whatever he wants out of the final product. I still think the pressure brought upon REID by the majority of Democratic senators will prevent this from happening. There is even more at stake than wolves being slaughtered by the hundreds

      • JimT says:

        I hope you are correct….Perhaps the fact that Reid doesn’t have to deal with the wolf issue makes it easier for him to act…let’s hope so.

  3. JimT says:

    Tom Udall is Mark’s cousin, son of Stewart Udall. Mark’s dad was Mo Udall. I too hope I am wrong, and there is a “white knight” out there, but Tester cares more about keeping his job than the damage he is doing to the ESA..not just in the West, but all over the country.

    • Elk275 says:

      Jim T

      “but Tester cares more about keeping his job than the damage he is doing to the ESA..not just in the West, but all over the country”

      I think that everyone, including YOU, cares about keeping their job or position or “Key Status” as they called it in sociology class. Everyone on this forum cares about their job or should. What would you rather have Jon Tester or Dennis Reberg? I would prefer Jon as I do not like Dennis. There are two choices, Dennis or Jon. If the democrats lose the control of the senate then this wolf situation will morph into the gutting or rescinding the ESA. The ESA has done wonderful things and some not so good things.

      Yesterday, the Montana State House pass a resolution 99 to 1 to delist wolves it is not binding due to federal law but an indicator. When the constitution was written the House of Representatives represented the people of that house district. The senators represented their state not the United States. Jon is doing the job that he was elected for.

      I agree with you on attaching riders on to no related bills instead of allowing the bill to stand on its own, but that is not the way Washington works and it works both ways. I think that Jon will win the election by less than several thousand votes.

      • Nancy says:

        And I think wolves will lose regardless of who wins Elk. Its all coming down to who’s best at “following the money”

      • The choices are certainly bad. Tester has been a big disappointment. Rehberg is a loathsome whore.

      • Phil says:

        Elk: Yes, people care about their jobs, but when you take the high ranking of your job and missuse it with the powers that come along with the job, then criticism should be thrown at the individual. Tester is basically using his power in office to appeal to a small group of people in satisfying their desires because “rewards” are thrown in his face.

      • Elk275 says:


        Hunters and fishers are one of the largest group of people in Montana, they vote, and everyone who has hunted in Western Montana has had wolves affect there hunting. I have several times. Tester is representing the people of Montana not the people of the nation. Wolves are not going to kill all the elk but wolves are going to reduce hunting opportunity in coming years unless they are controled and there numbers kept in check. I am pro wolf and want a controled number of wolves but they must be controled. We do not live a balanced eco system nor are we ever going to live in that type of system with 7 billion people on earth.

      • JimT says:

        This is the classic game the Western Dems play that I dislike so much. If Tester is a moderate Republican in fact, what different does it make in terms of the final result for the Dems? I agree, Dennis is nuts, but sometimes it actually makes it easier to oppose someone whose agenda is so radically anti environmental. I also think they will lose the Senate in 2012 with Jeff B. not running again in New Mexico. It appears that state is losing its mind with the new governor; my wife was in Santa Fe meeting with old friends from the AG office..and they are just shaking their heads; she is making the Catron County folks look reasonable. It really is Sagebrush all over again..

        As for keeping my job…Call me a refugee from the 60s, but I think elected officials must care less about keeping their jobs than doing their jobs..and that means much more to me that bringing home the bacon ala Byrd or Hatch or any of them, or kowtowing to campaign funders. We have lost sight of a larger picture, of doing a greater good than just a local or regional polity might like…

      • Salle says:

        I live in Montana and even voted for Tester… which I now regret. As far as I’m concerned, he does not have any intention of representing me or anyone who isn’t a mine operator or rancher. He never even sent me a lousy form letter to recognize the fact that I came to express my views to his “listener” a couple months ago. At least that louse, Max Baucus, sent me an e-mail even though it basically said I could drop dead and that he had no interest in representing me… slimebag schill that he is.

        Tester is going to lose this time around. Both senators are only interested in appeasing the bully faction in the region, because in their minds these bullies put them in office, nobody else matters in their playbooks. Which is why I told all those other senators that I was calling them, because my senators don’t have any interest in representing anyone outside their small circle of friends… who are clueless about the environment and what it means for the human population in the long run.

        I think it’s truly myopic and selfish to look only at what has to give way for humans without regard to the concept that as the human population takes over the habitat of all other living organisms on the planet, there will be less air, water, space and FOOD for those sorry humans. I think human population control is soon to come, if not, be prepared for the food wars to come which will at least get rid of some humans but will ultimately eliminate the other species that make the biosphere inhabitable for humans. It’s a circular thing, can’t get away from that no matter what you think or who know.

  4. Rita K.Sharpe says:

    You got that right,Nancy.

    • Immer Treue says:

      Rita, Nancy and others,

      I’ve been a strict Democrat voter since the late sixties/early seventies, mostly because;

      1. Though some of the Republican platform actually made sense, it is, as has been continually demonstrated, if you are one of the “working people”, they cannot be trusted.
      2. The Democrats talk the talk, but do not walk the walk. A vote, for someone else, was a vote for the Republicans.
      3. The continued sell out equates to the destruction of the Democrats, and hopefully enough folks who see that the Republicans serve the rich. I hope and pray a third party, Green party, any party who makes sense comes along soon. I’m ready for a change.

  5. Craig says:

    Hmmmmm seems like what I said a looooooong time ago! Should have left well enough alone with the reasonable Hunting season and all!
    Well you get what you give and that’s a big kick in the ass! When you won’t compromise, extreme measures are taken and the assholes who run this country take over one way or another and get their way.
    Did you guys really think it would do any good relisting them in the long run? The small amount killed during the LEGAL Hunt will be nothing compared to the slaughter coming! Again “Should have left well enough alone!”

    • Immer Treue says:


      Generalizations such as yours about those who contribute to this blog are not correct. There are many of us on this blog who, though don’t want wolves killed, understand that fair chase/sustainable numbers hunting, during a particular “time” of the season is a necessity. I take this personally.

      You are what you eat you prick!

      Ralph, feel free to delete this if you feel it warranted

    • Craig,

      If this was rational political system like it was say, 40 years ago, when bargaining and compromise were normal in American politics. In fact compromise was expected, and most politicians and groups kept their word. If the system was like that your comments would be right on the mark.

      However, those days began to disappear in the 1980s. Later, from the day “Butch” Otter became governor, it was clear that the rural elites who ran Idaho were determined to make this an issue to cover up their failings with the economy and to assert their cultural dominance.

      From the day groups like the “Friends of the Northern Range elk” emerged were tied to extreme ideologues like Christian Identity groups, it should have been clear they had a much larger agenda than killing off wolves. In fact, the misinformation spread about wolves might have just been training of a sort in the widening campaign to demonize teachers, take away folks’ retirement and medical care, eliminate their jobs and drive wages down to the level of China, India, and Mexico.
      – – – –
      I should add that no compromises were ever offered pro-wolf groups until a month or two ago. By then, it was useless because the issue had moved to the legislative arena.

      • Craig says:

        I agree with what you are saying Ralph. But was there more postioning going on even when we had a Wolf Hunt? I thought things were ok and everything settled down then. But I’m not in the know and could be very wrong.

      • Ken Cole says:

        Craig, I agree, you are not “in the know” on this. There has been a lot of discussion behind the scenes that I’m not privy to either but I know that the agencies and the states have been intransigent as Ralph indicates.

        Essentially, I think that they have offered nothing more than what this legislation will provide anyway.

        The USFWS has never budged from its original plan except to err on delisting without Wyoming. They have never considered adjusting the numbers of wolves upward to fit the best available science.

        You seem to think that the IDFG was going to stick to its management plan if we hadn’t challenged the illegal delisting rule. They didn’t in the end and that is what we have been saying since the plan was finalized. That plan was always just window dressing to achieve delisting and they never intended to follow it once delisting actually came. They lied.

        I don’t think that the Idaho Legislature will stick by its management plan in the long run either.

        Wyoming has never budged from its plan.

        Montana, while being the more moderate, has been indicating they won’t stick to their plan either.

        And we are who won’t compromise? Bullshit.

    • Nancy says:

      +Did you guys really think it would do any good relisting them in the long run? The small amount killed during the LEGAL Hunt will be nothing compared to the slaughter coming! Again “Should have left well enough alone!”+

      Geez Craig, is that kind of statement gonna make you look good on some of those blogs that could give a crap about wildlife?

      • Salle says:

        I think it sounds like he is in favor of the poachers and that this is just a weeny-waving pre-victory stance with regard to poachers and their intentions.

  6. Craig says:

    I do not kill anything I don’t eat, never have never will! I didn’t generalize anything except the fact that filing a law suit fucked the plight of the Wolf! You need to pay attention to what I was saying and maybe re-read it! Slowly in your case!

    • Immer Treue says:

      (You)Should have left well enough alone with the reasonable Hunting season and all!

      Well **you** get what you give and that’s a big kick in the ass!

      Did **you guys** really think it would do any good relisting them in the long run? The small amount killed during the LEGAL Hunt will be nothing compared to the slaughter coming!

      SLOWLY. Generalizations three.

      • Craig says:

        Ok? you think I’m wrong? I’m just saying what’s coming down, not if I’m right or wrong but what to expect!

      • Immer Treue says:


        Whether “you” are wrong or not about the continued “plight” of wolves matters little. The way you said it was wrong.

        I took great umbrage in the context of your post. I nor many others who post here were not unwilling to compromise, nor did we file lawsuits.

        I have petitioned 2 of the organizations with whom I work to compromise on this very situation. I have sparred with others on other sites, and I have written that I am in favor of the type of “season” on wolves as put forth by David Mech. The empty bottles only hear what they want to hear, and part of that “noise” makes me wonder even if there had been a season on wolves this season, if it would have made any difference. When Malloy’s ruling came down, part of me was joyful, the other part of me cried.

        My own personal philosophy, I’ve never cared much for the I told you so attitude. Electronic messages do little in the way of conveying humor/attitude.

    • Phil says:

      Craig: A couple hunters on here stated that it would not be a slaughter if the wolves are managed, but you showed the true nature of what certain hunters and the NRM governments want in management of wolves, and that is nothing more then to kill and slaugher as many as possible.

    • Rita K.Sharpe says:

      I would have liked to have said something but I can’t make myself do it out of respect for Ralph,Ken, Brain,and the others who post here.

      • Salle says:

        Okay, I’ll do it for you. What’s-his-name is just trying to get everybody riled up with his weeny-waving comments. He smugly thinks he has won a fictitious argument that he perceives and that there is no person smart enough, on this blog, to get it. Well, maybe if we all had the deranged perception of how government is supposed to work that he is afflicted with, we might… but that is not the case.

        I would also like to add that we play by the rules which is more than one can say about our opponents.

  7. Salle says:

    I called and left comment with over 20 senators today. Only one refused to talk to anyone from outside his state, that was Merkley from OR.

    I was able to give comments due to the fact that a senator from my state inserted this rider to the CR. I found that there are several of this group, that I called, who are not in favor of this rider on its merit or the precedents it sets on may legislative levels… aside from the fact that it is not a budgetary priority. I also found that they had already received numerous calls about it and were aware of the rider.

    I also asked them to call out Mr. Tester on this back door attempt to appease the bully factor in this region. I made sure to include that last part in my comments to Harry Reid. I also asked some of them to make this rider public and point out why it’s so blatantly wrong to make such a decision based on hopeful political gain rather than best available and current science that is the methodology mandated in the Act itself.

    There’s more but you get the idea.

  8. Troutslayer says:

    Rita…I’m ready for a change too. This country is on a long slippery slope that will end in the abyss. The fear mongers running this state only make me hunger for a relevant third party even more.

  9. Craig says:

    I didn’t start this shitstorm, don’t get pissed at me. I’m just telling it like it is! Like it or not that’s the way shit hit the fan! I had nothing to do with it but sit back and watch, and reflect on what I said would happen!

    • Phil says:

      Craig: “Sit back and watch”, or sit back and watch with a devilish grim on your face? Because that is what you sound like right now.

    • Rita K.Sharpe says:

      Craig ,give it a break. You had your say and let’s move on.

      • Savebears says:


        Why should Craig give it a break? Everybody has had their say on this blog over the last few years and it does not matter what side of the issue your on, it just keeps going on and on and on…

        I don’t agree with Craig, but I do understand his point, hell this is one of the most important issues going on right now where it concerns wildlife..if this goes through, it could very well change the entire scope of wildlife management in the future…

      • Elk275 says:

        Save Bears

        ++if this goes through, it could very well change the entire scope of wildlife management in the future…++

        How so? The biggest scare I would have if the fed’s want management over all wildlife on federal lands then would private landowner’s want ownership of resident wildlife on there deeded lands. One does not have to look very far to see this nascent thought.

      • Phil says:

        SaveBears: All Rita is trying to do is move on from the topic that is becoming hostile due to Craig’s comments. What is the purpose of continuing to target yourself and the hunting society that believes in similar views as he does when he talkedabout “compromising”?

      • Savebears says:


        I am speaking in terms of endangered species management, I am 100% behind state management of wolves as well as other species, but I would rather see it done through the de-listing pursuant to the ESA and not the Congress. But I do believe that they will be de-listed by Congress and not the USFWS.


        I have nothing to say to you.

      • Phil says:

        SaveBears: You don’t have to, but shows your true character.

      • Savebears says:

        To Add, Elk, I strongly suspect that may very well happen in the future..

      • Savebears says:


        I have requested you to not address me, you have mis-interpreted to much of what I have to say, you have no idea of my character or my commitment to wildlife, so please ignore me

  10. Phil says:

    I want to share a response from my senator Levin. I am not sure what bill this wolf delisting bill is attached to (numbers wise), but here is what Senator Levin stated.

    “Dear Mr. Nona:

    Thank you for contacting me to voice your support for protecting endangered populations of gray wolves. It was good to hear from you on this important issue.

    The health of natural ecosystems depends on the presence of predators like the gray wolf. There is a broad body of scientific evidence that shows that when predators are removed from an ecosystem, the system becomes unbalanced and unhealthy.

    Like you, I oppose legislation [H.R. 509] that has been introduced in Congress to remove the gray wolf from threatened and endangered species lists in the United States. I believe that decisions related to both listing and de-listing species under the Endangered Species Act should be made on the basis of sound science, and not politics.

    Thank you again for giving me the benefit of your views.


    Sander Levin”

    I am sure that there are more senators that will not accept the bill, but hopefully much more then we anticipate there are.

  11. Elk275 says:

    It will be interesting to see how this all turns out in the next several days.

  12. Phil says:

    Elk: Hunters and fishers are not the only group in of people in Montana. I stated this before and will state it again, 54% of residents outside of YNP that live within the three states are in favor of wolves and their protection, so how are your numbers comparable to these percentages? “Everyone who has hunted in Western Montana has had wolves affect their hunting.” Wrong! Many have written articles and even been interviewed by groups stating they do well in hunting even with wolves present. As some people on here stated before, the complainers of wolves who are hunters are the bad hunters. They barely got their kill prior to wolves, and since wolf presence that has changed ungulate behavior to a more natural anti-predator one, it has made hunting for these individuals much harder. Guess what? The people of the natiion are what help bring in any sord of economy for Montana. Tester does not represent the state of Montana, he represents certain individuals/groups. You are basically speaking as one of the individuals that Tester is speaking for. “Wolves are going to reduce huning opportunities.” So, because of what a wolf does naturally you are going to blame them for hunters not getting their catch of an elk? Are wolves creating a wall inbetween you and the elk to prevent you from getting an elk? Are wolves signing petitions to reduce the number of elk human hunters can get? What is it about wolves that is reducing the opportunities for hunters to hunt elk? And, you are blaming wolves for the unbalanced ecosystem caused by the 7 billion human population? Isn’t that the “scapegoat” that many people criticize hunters on for their excuses as to why to delist and hunt wolves? 1,700 wolves in a large lad base with a small human population and abundant amounts of prey in the NRM region calls for management? What about the near 400,000 elk that still roam the area that would not be managed without keystone predators like wolves?

    I have a large amount of respect for elk, and would not like to see them killed either, but it is a natural way of life for wildlife, and if hunters hunt them for food, then, although I still disagree, it is atleast a logical reason. But to kill an animal because it competes with you in hunting disregards the true moral way of humans. Here is how I see the wolf issue from the persepctive of certain hunters. You have two companies (A and B) who share a territory (sales of a product) next to one another. Company A wants to kill members of the company B to eliminate them from competition due to the fact that the company was being outdued by the other company. This may not be realistic as the wolf issue, but is it moral?

    • WM says:


      You really need to brush up on your critical thinking skills. The conclusions you reach based on the facts or poll results you quote above and elsewhere are not on the mark. Let me give you an anecdotal example.

      ++Many have written articles and even been interviewed by groups stating they do well in hunting even with wolves present.++

      Look, I don’t know where you get your quantitative “Many,” but I will submit the term should be “Some.”

      There are a fair number of people who have hunted elk in the presence of wolves in MT, WY and ID who have not been successful. Let me tell you something, sport. You don’t know squat about elk hunting, or changed behavior of elk in the presence of wolves in the NRM, living in Detroit or wherever the hell it is you pontificate from.

      Armchair “experts” such as you with your faux “psuedo knowledge” learned from blogs, or other armchair experts like chatterboy “jon” do alot to discredit the wolf advocacy cause. In that vain you are at the same level as Rockholm and the badbear bloggers. Get some facts and write within your pay grade and you will get respect.

      • Dude, the bagman says:

        “There are a fair number of people who have hunted elk in the presence of wolves in MT, WY and ID who have not been successful.”

        While I don’t at all doubt the truth of this statement, I don’t think it’s as big of an issue as unsuccessful hunters make it out to be.

        A few years ago, I worked for the Forest Service. We were camped off one of the major access trails to the wilderness during elk season. Several packstrings a day were coming out of the mountains. Most had multiple elk heads mounted to the stock. Some of these had pretty impressive racks. One older gentleman and his friend came back empty handed. Guess what he said?

        “I just spent a week up there, and all I saw were (expletive deleted) bear and wolf tracks! Unbelievable!”

        While the wolves were undoubtedly in the area (I saw and heard some), he and his friend were apparently the only hunters out of quite a few who had trouble finding the elk.

        The moral of the story is that although the wolves change elk behavior, there are still elk out there for those who are willing to adjust their tactics. The wolves have made the elk more wary. They don’t saunter around the wilderness as if they were grazing on a golf course in Banff (where they live surrounded by giant Canadian wolves). They’re used to being hunted now. If they’re standing in a meadow and sense you’re there, they’ll skedaddle.

        If nothing else, the wolves have become a convenient scapegoat for every unsuccessful hunt. Was every elk hunt successful before 1995?

      • WM says:


        I gave a very detailed account here of my north central ID elk hunt last October here (at jon’s very specific request, I might add). Wish I could find here, to reproduce for your review. My anecdote from last year, was that in two days of pre-season scouting and eight days of very hard hunting I saw three elk – one of which was the bull I shot, on very steep brushy ground. It was a bitch getting it out. My three very experienced hunting partners saw only a few more elk. No habitat change in this area and not a huge amount of hunting pressure, but lots of wolf tracks and fresh crap everywhere. Very, very significant changes in elk behavior and we also saw lots of carcass remains (bones with cartilege) of elk calves. We first began seeing this in this area four years ago (very little bear sign). Calf recruitment here is very low, and it is changing the herd age strucuture in major ways. That may dictate hunting season changes and hunting opportunities.

        Certainly not every elk hunt is successful and depending on where one is the success rate might be about 12-20+ percent. So there will always be those who are not successful and blame wolves OR the weather, the game department for past harvest formulas, the habitat and whatever. Wolves are a new variable, and along with the numbers of bears and lions are variables that to some extent can be actively managed. Wildlife agencies cannot do that now, especially with a 1,700+ (some including Dr. Mech has said roughly 2,000) whose numbers are expanding at a rate of 15-25 percent per year. So, my guess, with the Spring pup crop, it will bring a conservative net increase of total NRM wolves to near 2,400. It will be interesting to see what the 2011 state/FWS NRM annual wolf reports show. Projecting out to 2012, the wolf population in the NRM including dipsersers to WA, OR, UT and maybe CO, could reach 2,800 – 3,000. I bet this projection data is somewhere on some FWS biologist’s computer, along with the number of elk required to support such a population.

      • Phil says:

        wm: Plain and simple, read them online. Many have stated they live in such and such in Montana, Idaho and Wyoming and back up what I poste. You can contiue your crap political talk all you want, but it is people like you that are pushing the political rhelm onto issues regarding wildlife and want to put the science side of it on hold. I am not a sport, wm. When I stated many, this does not mean a majority, minority or such, it means there are lots of people who hunt in the same regions where wolves are at and have been successful without using the excuse of wolves as a scapegoat. You pondering something that I have not stated just to try to make yourself seem more intelligent then what you really are. Stop with the poltical talk when it is not needed.

        “Armchair” expert? I may not be as old as your are wm, but I definately understad what it takes to get reliable resources to prove a point.
        Yes, I did mention articles online and such, but apparently you did not read the portion where I stated that I have also been in contct with a good amout of hunters who have stated similar to what was on online articles. “Get some facts and write witin yor pay grade and you will get respect”? What kind of respect are you talking about wm? The same respect that uses politics on EVERY issue that comes about from people like you? So, all I have to do is talk in words that are related to the political world and I will recieve the respect that you believe you have? That is not the reality world. I am younger, but I have spent MANY hours working as a volunteer with predators while finishing up my degree. I would work for free with wildlife if I could as has been proven through my volunteering hours. I do not regard wildife or any other passion I have to fulfill a self criteria as some others do. “pseudo knowledge”? Good one wm. I can see now why jon ignores your childish rampages on him, because it is not worth speaking to “dictator-like” political speakers like yourself. You basically want to control a forum with your garbage comments criticizing anyone and everyone who does not believe in your propaganda. That alone there is no different then your example of “Rockholm”. I have not read one knowledgeable comment from you regarding wildlfe that does not have a political theme to it, not one. Continue your gibber gabber, wm, but you are basically wasting your energy typing your belief trying to use it as a persuasive way to gather followers.

  13. william huard says:

    A good friend of mine is an attorney, and she told me that the wording on the rider is probably ‘unconstitutional”. Congress can make laws but cannot usurp our first amendment rights and claim “not subject to judicial review”. If Tester has his way and Montana kills all the wolves in the state there would be no way to question their authority? Remember our constitution is based on checks and balances and this end around is anything but. What’s even more mind boggling is Oregon and Washington where you have only a few wolves!

    • WM says:

      ++A good friend of mine is an attorney, and she told me that the wording on the rider is probably ‘unconstitutional”. ++

      I would be most interested in hearing what the Constitutional argument is, William. Can you, or your attorney friend articulate it?

      • william huard says:

        Golly Gee WM-
        I’ll call her right now and ask her. Without being an attorney I don’t know, but I can’t remember a rider being introduced that had this “Not subject to judicial review”. Doesn’t that go against everything our Constitution stands for?
        Since you’re the know it all- perhaps you can give us 5 or six paragraphs on the subject!
        That is after you’re through criticizing people for expressing their opinions

      • WM says:

        Gosh, well OK william,

        One thing I can’t stand is when one of you real “know it alls” gets the sunshine pump going.

        Congress has the plenary power to pass laws (and the President signs or vetoes them), as long as the content does not go afoul of the Constitution. The role of the federal courts is to keep them in check. Hence judicial review.

        As we all know, a past Congress passed and the President signed the ESA into law, and subsequent changes have been made since. USFWS has authority to promulgate regulations under the law, which must be within the scope and authority of the law, and are subject to judicial review under the Administrative Procedures Act (APA). In the case of the Molloy wolf rulings he ruled the 2009 regulation breaking up the DPS along political boundaries by excluding WY is not permissible within the scope and authority of the law. That takes us to where we are today, recalling that Judge Molloy’s ruling is on appeal to the 9th Circuit.

        The Continuing Resolution under consideration, if passed by both Houses of Congress and signed by the President will make new law. The CR deals primarily with budget, but sadly other things can get attached as riders.

        To the extent that wording modifies the existing ESA law (statute or administrative regulations promulgated under it), it will supercede the previous applicable ESA law under which Judge Molloy ruled. The wording of the new law says, we the Congress say the USFWS rule will stand, and is now the law of the land. The judicial review language here seems superfluous, and an obligatory, but unnecessary shot across the bow of the court.

        Of course, one can always file an action for judicial review, but to my knowledge there appears to be no basis because Congress can pass a law of this type in this area without creating a Constitutional issue. So, in short, Congress giveth and it taketh away. It is a backhand slap at a very narrow amendment to the ESA only applying to NRM wolves and the DPS issue.

        If someone has a better. or simpler, legal explanation, with a different end result, please, let’s hear it.

      • JimT says:

        I believe it is an Article Three issue, WM….but I am no Constitutional scholar. I am sure if you have access to law review data bases, there will be an article or two on the subject. It certainly isn’t the first time this came up. I do think it is incredibly arrogant of any Senator of any party to attempt to circumvent the balance of powers inherent in the tripariate system, and especially by backdooring it via a CR amemdment.

      • WM says:


        I am no Constitutional law scholar, either. However, one cannot imagine this rider language was drafted on the back of a napkin. The reference to no judicial review is likely meant to come from the fact that the Congressional intent was to ratify the language of the FWS 2008 regulation, which was passed under the APA, which could otherwise have been judicially reviewed against the ESA. One might speculate that it was a belt and suspenders move by the drafter to make that clear by saying Congress is making the FWS rule statute rather than just ratifying the regulation, and thereby changing the ESA as it applies to NRM wolves.

        And, do recall there is the theory of “judicial activism” which refers to the judiciary going outside its role of reveiw of the legislative content of laws passed by Congress to one of “judge made” law, which no doubt got some face time in discussions as a result of Molloy’s last ruling.

        I happen to think Molloy ruled properly under the law, and which clearly points to the institutional deficiency of the ESA when one state screws up the efforts of others who have accepted their responsibilities as outlined by FWS (the content of those responsiblities is an entirely different issue). As I have said before, other federal environmental statutes have provisions for the federal agency to assume a “management” role in the event a state declines or screws up. The ESA should have this too.

      • Dude, the bagman says:

        I just assumed that limiting judicial review only applied to FWS’s reinstated rule under the APA. Since it’s no longer a rule, but a full-fledged law, APA judicial review would not apply.

        Obviously, Congress can’t put its laws above constitutional scrutiny without violating separation of powers. I construed the law in the way that doesn’t violate the Constitution. A judge would do the same.

        I put a more detailed post about this issue toward the bottom here: http://wolves.wordpress.com/2011/03/05/budgetary-reprieve-for-wolves-short-lived/#comments

      • JimT says:

        WM, most of those statutes are EPA statutes, with designated programs in the air and water areas. I can tell you from personal experience that the states are always flirting with compliance and noncompliance. Frankly, there were more times when a program should have lost authorization than the public knows, but to be honest, EPA didn’t want to take that step because it meant more work for the Regional Administrator’s enforcement and monitoring staff. I don’t see the system working any better with the ESA, and probably a lot worse given the politics and current resurgance of Sagebrush madness in several Western states. Enforcement of protections would always come second to the local influences of the usual suspects in wolf and species politics. The virulence of the reactions to LEGAL decisions (sorry Craig, but I think following the law is a good thing, not something to be avoided) have convinced me that as the politics go right now, these states would simply hunt and trap and kill with impunity if given management oversight.

      • JB says:

        What folks may wish to consider is that while the 2009 Final Rule removes wolves in MT and ID from ESA protections, the states are by no means “off the hook” with respect to wolves. The ESA’s 5-year monitoring provision, as least as far as I read it, still applies. (Meaning wolves could still be relisted if the states “manage” wolves in such a way as to potentially imperil the population.) Importantly, a continuous downward population trajectory, especially in MT where populations are still relatively small, could force FWS to relist. Even if the agency declined to relist wolves, the citizen petition provision is still in place–and FWS’s decision on such a petition would NOT be exempt from judicial review.

      • WM says:


        You raise some good points regarding the remaining protections if the Tester bill goes through (unlikely if Ken’s recent post regarding ABC news analysis is accurate). Assuming for discussion, the Tester bill is not completely dead:

        WY wolves would still be ESA protected, so there is no real change there unless the ruling of Judge Johnson in the WY litigation produces a different FWS result under proposed but unapproved WY wolf management plan.

        ID and MT would “manage” apparently to the objective of the ridiculously low (and possibly unscientifically supportable) 150/15 breeding pair numbers. But the states would still be under FWS scrutiny AND monitoring for compliance for the 5 year period, as you point out, subject to relisting. Sure seems to me the door is open to increasing the numbers on the basis of best science and any emerging genetic connectivity issues. That also means, I think, that dispersers out of the defined NRM DPS are protected. So there is yet another safety net.



        Yes you are obviously right about the air, water and solid waste acts being EPA statutes, but the “cooperation with the states” is much along the lines of the ESA Section 6, “maximum cooperation with the states provision.” The ESA just doesn’t spell out exactly what that means, and apparently does not allow for FWS to be a “manager” of a delisted species, when a state does not want to play, thus jeopardizing the status of other states carrying out their approved management parts. “Therein lies the rub,” as Shakespeare would say, and is the basis for Molloy’s ruling.

        It is also the cause of the backlash that is the subject of the proposed changes to the ESA. This matter needs a safety valve to blow off some of the tension. Otherwise it is going to continue get worse and the affected states are likely to even more vigorously pursue their respective paths of disrespect for federal law protecting wolves, including looking the other way when wolves start showing up dead.

    • WM says:


      “One might speculate that it was a belt and suspenders move by the drafterS to make that clear by saying Congress is making the FWS rule A FEDERAL statute rather than just ratifying the regulation, and thereby SIGNIFICANTLY changing the ESA as it applies to NRM wolves, AND THE INSTITUTIONAL ASPECTS OF DPS management”

    • JimT says:

      JB, I have NO confidence in Montana, Wyoming, Idaho, Utah or New Mexico ever really committing to the monitoring requirements of the ESA delisting. In all likelihood, budget woes would be cited for the paucity of enforcement officials, and field staff would be likely to look the other way on most causes of killing wolves due to local pressures and state pressures.

  14. Salle says:

    Judicial review is the remedy for disputes regarding the ESA period. If it is removed, and for one specific species, there is a big problem concerning the process mandated with the Act itself. This rider is a big step in gutting the entire ESA and that is the end result these buttheads are fishing for.

    A number of the senators that I called yesterday agreed. The removal of judicial review is out of order and is one of the reasons they will oppose, if not scream loudly and publicly about it.

  15. Ken Cole says:

    It’s looking more and more like the senate bill that this language appears in is going to fail. There is already talk of yet another short term CR to get another few weeks of funding for the government. What happens after this is anyone’s guess. Will it reappear in another bill? Will it get dropped entirely? Who knows?

    I am reasonably confident that none of the bills introduced will pass the Senate on their own.

    I don’t think that this delisting provision will help Jon Tester be re-elected either way.

    From: http://abcnews.go.com/print?id=13078670

    The Senate is planning to vote on both parties’ proposals today, but the votes appear to be more symbolic than productive: both measures will be defeated, since 60 votes are needed in the upper chamber of Congress and neither Democrats — with their 53-seat majority — nor Republicans — with their 47-seat minority — will be able to reach that threshold.

    • JimT says:

      Ken, I have not heard anything, so thanks for the updates. Keep; them coming if you hear anything additional on the CR.

      I think you are correct; the bills in the Senate would not be passed on their own. In 2012…who knows? It is beginning to look like the available seats will be vulnerable to a Republican takeover.

      As for Tester..he could jump parties if it meant he would be elected…

  16. Jim says:


    I have not visited your site in a while, and after looking at some of the stories I want to know if there is any good news.

  17. JimT says:

    There was a victory in the Tongass yesterday, Jim, reinstating the roadless rule….but these days, the “bad guys” seem to be everywhere and into everything…

  18. Phil says:

    WM: But, off course it is not us that knows it all but rather yourself, right? There you go again trying to control a room with your belief that you are the most intelligent person here and anywhere else. I get quite a laugh when I see the tone in your comments.

  19. Phil says:

    Dude: Great comment. Although there are hunters who have adjusted their tactics of hunting elk since wolf presence from their reintroduction, there are still the ones that have and will continue to refuse this adaption of changing their ways of hunting, and these are the ones that are severly damaging the reputation of the hunting society.

  20. Ken Cole says:

    It is unlikely that the Senate budget bill will pass but it wasn’t voted on today.

    Senate funding vote delayed as parties trade barbs over competing proposals.
    Washington Post


March 2011


‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey