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Tester's howling error

Congressionally delisting wolves could gut the ESA

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Montana is already a national laughingstock thanks to the Republican legislature's blatantly unconstitutional efforts to nullify federal laws on everything from guns to currency. Now comes Montana's two U.S. Senators, Democrats Jon Tester and Max Baucus, who will only exacerbate the problem as they seek to congressionally exempt wolves from the Endangered Species Act—a precedent that may well make the act itself extinct.

Early this week, Tester told the Missoulian: "We're really not changing the Endangered Species Act. 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."

As the heat from national environmental organizations begins to descend on Tester, his statement is an obvious attempt to deflect criticism from the unprecedented move and assure Montanans that he is not actually doing what he's doing. The problem is, it'll take more than talk to convince folks that what he's doing is harmless—because it isn't.

The exact language of the rider is "Before the end of the 60-day period beginning on the date of enactment of this Act, 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 and shall not abrogate or otherwise have any effect on the order and judgment issued by the United States District Court for the District of Wyoming in Case Numbers 09-CV-118J and 09-CV-138J on November 18, 2010."

For those who haven't been following Montana's wolf saga, a brief summary may be useful. Although wolves were naturally migrating down the Rockies from Canada, the U.S. Fish and Wildlife Service decided to introduce an "experimental population" in Yellowstone National Park to return this key predator to the ecosystem. Since wolves were nearly exterminated through poisoning, trapping, and hunting a century ago, large ungulates such as bison and elk were, except for the bite of the occasional grizzly bear or mountain lion, virtually free from natural predation.

As the herds outgrew the capability of their grazing range, it led to the slaughter of thousands of bison that attempted to leave Yellowstone to find food, and ecological damage to fragile riparian areas from too many elk on too little land. Federal wildlife managers reasoned that the easiest and best way to deal with the problem was to reintroduce the wolf to the ecosystem and restore some balance between predator and prey.

To make a long story short, the experiment worked. The Yellowstone wolf packs drew tens of thousands of visitors from around the globe seeking the rare chance to see a wolf in the wild. And sure enough, the park's riparian vegetation began to recover and, at least marginally, the wolves provided some reduction in bison numbers.

But wolves being wolves, they recognize no particular boundaries. Soon they spread out into Montana, Idaho, and Wyoming, and, as happens so often when a predator is reintroduced to an ecosystem, they found easy pickings on prey that hadn't dealt with wolves in a century. Moreover, since cattle far outnumber people in Montana, some of the wolves found even easier pickings in domestic livestock.

To address the issue, Montana and Idaho developed federally approved wolf management plans that included issuing licenses to hunt wolves. Those hunts functioned as expected; hundreds of wolves were killed in recent years. But here's the rub: Wyoming's plan did not meet federal approval because it classified wolves as predators that could be shot on sight in almost all of the state. Nonetheless, the Fish and Wildlife Service issued a rule saying wolves in Montana and Idaho were recovered and were removed from the protections of the Endangered Species Act.

Concerns over the genetic connectivity necessary to fully recover the wolves prompted 14 environmental groups to file a federal lawsuit to put wolves back on the Endangered Species list. Last year, Federal District Judge Donald Molloy ruled that the Endangered Species Act did not allow selective delisting along political boundaries and restored protection for wolves in all three states.

It's no secret that the 2012 elections are likely to be contentious. Political pressure motivated the environmental groups to find a way to settle the lawsuit with the federal government and restore the ability to hunt wolves in Montana and Idaho. The iron fist behind the move was Senator Tester's threat to congressionally de-list the wolves.

Ten of the 14 groups that originally filed the suit bowed to that political pressure and moved to settle with the feds rather than see the precedent of selective congressional delisting of endangered species whenever political pressures grew too hot. Four, however, did not. When the dust settled last Saturday, Molloy ruled that he had no choice under the law except to deny the settlement.

By politically delisting a species—and exempting that decision from judicial review, as Tester's rider does—our Montana senator opens the door for anyone else to do the same. Got a minnow in the way of a dam? De-list it. A bird or some insect in the way of progress? De-list 'em. If Tester and Baucus can do it, any senator or representative can follow suit.

But wolves remain symbols of the wild for most of the nation. Montana doesn't need the backlash Tester's move will undoubtedly engender. Nor will it enhance Tester's chances of reelection. Wolf reproduction is slowing while Montana's elk numbers are healthy and growing. We can and will deal with wolves—but gutting the Endangered Species Act is the wrong way to do it, and will bring infamy to both Tester and Montana.

Helena's George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.

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