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Courts can't stop it

On review, Endangered Species Act gets mauled



Last week, the Ninth U.S. Circuit Court of Appeals finally ruled in the case challenging the constitutionality of the rider sponsored by Montana's Sen. Jon Tester that removed wolves from the protection of the Endangered Species Act. It was the first time in the 37-year history of the ESA that a species had been removed for political instead of scientific reasons. With the court's rejection of the appeal, the Endangered Species Act may be as threatened as the plants and animals it was designed to save.

The case, formally titled Alliance for the Wild Rockies, et al., vs. Ken Salazar, et al., sought to overturn a ruling issued last August by Federal District Judge Don Molloy. While it had been characterized as being about wolf reintroduction and the hotly debated question of whether the wolves were recovered and therefore no longer needed ESA protection, wolves were not really the point in question.

Tester's rider included language that made its provisions exempt from judicial review. The appeal questioned whether that violated the constitutional separation of powers. Section 1713 of the Department of Defense and Full-Year Continuing Appropriations Act of 2011 read: "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...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..."

In his ruling on the case, Molloy sharply criticized the use of a last-minute rider on an unassociated appropriations bill as "a tearing away, an undermining and a disrespect for the fundamental idea of the rule of law. The principle behind the rule of law is to provide a mechanism and process to guide and constrain the government's exercise of power. 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 by using insider tactics without debate, by attaching riders to legislation that must be passed."

Molloy continued, "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 is unconstitutional because it violates the Separation of Powers doctrine...It is the function of the courts to consider arguments of principle in order to enforce a statute, even if the statute itself stems from an altered policy. This distinction holds true even when the legislative process employed involves legislative prestidigitation."

The "prestidigitation" Molloy referred to was the inclusion of what he termed "magic words," writing: "In my view, the Ninth Circuit's deference to Congress threatens the Separation of Powers; nonspecific magic words should not sweep aside constitutional concerns." Yet, despite such misgivings, Molloy concluded that "so long as Congress uses the words 'without regard to any other provision of statute or regulation that applies,' or something similar," Tester's rider was constitutional.

It was the strength of Molloy's argument that prompted the appeal to the Ninth Circuit, although the plaintiffs knew their chances were slim. The court would have to overturn a Supreme Court ruling and would be unlikely to do so. In the end, the Ninth Circuit upheld Molloy's ruling that Tester's rider was constitutional but added some interesting opinions along the way.

In April of last year, 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."

That's not what the Ninth Circuit found, writing instead that "[h]ere, Congress has directed the agency to issue the rule 'without regard to any other provision of statute or regulation that applies to issuance of such rule.' This court has held that, when Congress so directs an agency action, with similar language, Congress has amended the law... Congress effectively provided that no statute, and this must include the ESA, would apply... Congress thus amended the law."

The Ninth Circuit also addressed Molloy's "magic words," writing: "There are no 'magic words' that can sweep aside constitutional, however, it is clear that Congress intended to amend the law so as to avoid the usual course of administrative proceedings that include judicial review; otherwise, it would have been unnecessary for Congress to act at all."

These fine points of the law mean nothing to the wolves, of course, which have been killed by the hundreds in Montana and Idaho since Molloy's ruling. But upholding it does mean something to those seeking to circumvent the Endangered Species Act. It means that any member of Congress can toss aside protections for any species if he or she slaps a rider on an unrelated, must-pass bill and includes the magic words to exempt it from challenges in the courts.

With hundreds of species edging nearer to extinction every day, Congress should be strengthening, not weakening, the Endangered Species Act. Yet, following Tester's nefarious lead, it may well be the Endangered Species Act that's condemned to extinction, falling victim to more species-specific, politically expedient riders.

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

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