July 22, 2019

I Thought Wolf Delisting Law Prohibited Judicial Review

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wolfutahIn March of 2011, I told readers that the Baucus/Tester rider bill on a federal budget continuing resolution was a fraud, corrupt, designed to exhort money and destroy urban America, deceptive, dishonest, political regurgitation, crooked, destructive, inequitable, preferential, and unconstitutional. I think I got all the bases covered. In short, I did not like it very much. I do recall on more than occasion saying that passage of this bill would come back and bite us all on the ass. The chickens have come home to roost.

First, a little history. Efforts by a small group of concerned citizens believing in the need for sensible wolf management and control, spent a great deal of time to get someone in Congress to work toward getting the Endangered Species Act amended, that would yield real results aimed at limiting the ability of environmental groups to bring frivolous lawsuits and managing wildlife through the court system.

Good and positive progress was made in Washington until another group of so-called sportsmen, decided their politics were more important than productive and equitable wildlife management. Having access to lots of money, they were successful in destroying the years of effort many of us had put in and in it’s place was born the rider bill to a budget continuing resolution brought by Senators Baucus and Tester.

*Note* – More information on the rider bill and the political shenanigans can be found here and here.

The “rider,” attached to the continuing resolution, reads as follows:

SEC. 1713. 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.

*Note* – I added the links in this rider bill text for truth seekers interested in research. I also emboldened parts of the text.

On April 2, 2009, the U.S. Fish and Wildlife Service (USFWS) published in the Federal Register the plan to delist wolves in the Northern Rocky Mountains. This was challenged in the Courts and wolf delisting was repealed and wolves were placed back under protection of the Endangered Species Act. Subsequent attempts to delist, were, once again, met with lawsuits, until, out of frustration with trying to deal with a serious issue through normal channels, we ended up with passage of the rider bill shown above.

But did we then and do we now understand what that bill actually says? It is typical politician and lawyer mumbo-jumbo B.S., designed to deceive and leave wide open the door for further litigation and interpretation. (Defined as a way to make gobs more money.)

Dr. Charles Kay, wildlife ecology, Utah State University had said from the time of passage of the Baucus/Tester bill, that the wording of the bill is such that it ends the prohibition of litigation at the end of the mandated, 5-year monitoring period, which is found in 74 Fed. Reg. 15123 et seq. Upon hearing that environmental groups intended to sue the USFWS when the 5-year monitoring ended, Kay said, ““Congress said that the 2009 delisting regulations were the law of the land and that there was to be no more litigation regarding the 2009 regulations, which include a provision that the Feds monitor state management for 5 years before fully removing wolves from federal control……..Congress did not say that final removal of federal oversight could not be litigated.

What do you think the text means?

First we read that the Secretary of Interior must reissue the 2009 Final Rule to delist wolves. Simple enough. The text clearly states that the Final Rule has precedence or authority over any “statutes or regulations” that have been issued in this case. In other words, all previous court rulings from lawsuits brought after the initial filing of the 2009 Final Rule, are void.

Now comes the confusing words – I believe added by design (political bantering and corrupt back-scratching). Such reissuance (including this section) shall not be subject to judicial review … Assuming that “including this section” means Sec. 1713 (shown above) then it must be interpreted to  mean that the passage of the continuing resolution, including Sec. 1713, cannot be challenged in a court of law.

I read the rest to mean that the “reissuance” of the 2009 Final Rule cannot be challenged in a court of law. What isn’t clear is whether or not the reissuance of the 2009 Final Rule can ever be challenged in a court of law. I see nothing in the above text that even prohibits lawsuits after the reissuance. All I read is that the act of reissuing a Final Rule cannot be challenged.

Perhaps a closer look at the actual Final Rule will shed more light. The Endangered Species Act requires that from the time of issuance of a Final Rule to remove a species from ESA protection, a period of, no less than, 5 years must be set aside for the USFWS to monitor the species and the actions of a state’s management plans and results. Inside that 5-year monitoring, the USFWS has authority to intervene and place a species back under federal protection if they so deem appropriate. In other words, the Feds have authority over the wolf management plan. After the 5-years, then what. Is the Final Rule null and void? If after the 5 years and the USFWS sees no further need to monitor the wolf, then isn’t it probable that from then into the future should the USFWS want to put wolves back under protection of the Endangered Species Act, they would have to begin the process all over again? Which would include no restrictions on lawsuits.

One might assume that under “normal” administration of the ESA and a final rule, that anyone would be free to petition and ultimately file a lawsuit intended to force the USFWS to continue monitoring of a species, should such a suit provide evidence to show a species may be in peril under existing circumstances. Because in this case, it is not normal, do environmentalist groups have freedom to challenge any part of the “reissuance” of the 2009 Final Rule?

Sec. 1713 of the Continuing Resolution says that the “reissuance” cannot be challenged. Now that the Final Rule has been reissued and the 5-year monitoring is near complete, can wolf delisting in Montana and Idaho be challenged?

I would assume that if it can, then any part of the delisting of wolves in Montana, Idaho or anywhere else in the United States can be challenged in a court of law. That being the case, then we should expect that with the past history of wolf litigation, along with the mostly bought-and-paid-for judges, wolves will systematically be declared endangered and will be federally protected anywhere the environmentalists would like for them to be, along with the help of the Courts.

Therefore, I return to my original anger when certain “sportsmen” groups used their own political agendas to destroy an effort in Congress that would have prevented such lawsuit nonsense. Instead, we are right back to square one where management of wolves is fully in the hands of the Courts.

In an email just the other day, I shared with a few recipients to remind them that the USFWS has never won a wolf lawsuit brought by environmentalists. As a matter of fact, I don’t think they have even challenged a court ruling on wolves.

Partisan politics, rooted in power hungry greed, destroys everything. That is why Washington is a dysfunctional cesspool of corruption and criminal activity.

 

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