Hyperbole and mendacity are the tactics used by Defenders of Wildlife over wolf delisting

By Seth Richardson

One of the better parts of the budget bill signed into law by President Obama last week is a provision that places wolves in Montana, Idaho and parts of Washington under the management of the states, but still subject to some federal supervision, rather than under the full protection of the Endangered Species Act.

It’s not a complete victory for the states, however. The rider by Sen. Jon Tester, Democrat Senator from Montana and  Idaho Republican Rep. Mike Simpson reinstates a 2009 U.S. Fish & Wildlife Service decision to turn over management of wolves to the states that was thrown out by U.S. District Court Judge Donald Molloy in 2009 and affirmed in April of this year.

In 2008, the F&WS published a Decision and Final Rule in the Federal Register that wolves in the northern Rockies, including Idaho, Montana and parts of Washington, had recovered sufficiently in numbers to justify removing them from the full protection of the ESA, and it turned over most of the management of wolves, including limited hunting seasons to control wolf populations, to the states. This Decision and Final Rule was immediately appealed in federal court by Defenders of Wildlife and a dozen other conservation groups.

In throwing out the Decision and Rule, Judge Molloy said that the F&WS could not delist wolves in Washington, Montana and Idaho while leaving wolves in Wyoming still under protection because the ESA does not expressly authorize delisting by state, but only by “discrete population segment,” which means a biological/geographical grouping not a legal state boundary.

The Congressional rider, now signed into law, directs the F&WS to reinstate the 2008 Decision and Final Rule, and it also prohibits anyone from challenging the Final Rule in court.

According to Defenders of Wildlife, “This provision sets a dangerous precedent for legislating on Endangered Species Act protections that could leave countless other species vulnerable to attack. And, by blocking any further judicial review of wolf delisting, this provision sends the message that complying with the law doesn’t matter.”

But this is mendacious nonsense, and it is Defenders of Wildlife, along with other so-called conservation groups who are falsely complaining about complying with the rule of law.

You see, the ESA is not intended to be a vehicle for perpetual federal management of state-owned wildlife or an expedient for radical environmentalists to be able to forever interfere with private property rights and frustrate development. It’s intended to protect truly endangered species until they have recovered sufficiently to survive on their own, at which point the law mandates that such species be delisted and management be turned over to the states.

Wolf proponents have been misusing the ESA for years now as a vehicle to, in part, eliminate public-lands ranching, which they and other environmental extremists believe is harmful to the environment. Ranchers in Idaho and Montana have been suffering massive losses of livestock due to wolf predation, and neither the F&WS nor the wolf advocacy organizations have been particularly sympathetic or helpful in dealing with wolf predation.

While Defenders of Wildlife has operated a wolf predation compensation program since 1987, and likes to tout its alleged success, saying, “Defenders’ livestock compensation program has been a resounding success in helping ranchers who live and work in wolf country,” the reality on the ground is much different.

Ranchers in wolf country complain about bureaucratic interference, delays, and outright refusals to compensate for stock losses. Generally, in order to qualify, the livestock kill has to be verified by the F&WS as being caused by wolves. If there is any question, and the F&WS is well-known for questioning every claim in detail, and if there is any excuse at all they can use, the claim is denied.

Because open-range livestock ranching means that a kill might not be discovered for days, or weeks, stockgrowers are denied compensation more often than not because the F&WS requires that the owner prove a wolf actually killed the animal, even if the carcass is surrounded by wolf tracks and covered with wolf hair. Since livestock die and can be killed by other predators, like coyotes and bears, a wolf-kill claim will be denied, practically speaking, unless the owner saw the wolves kill the animal.

Nor, under the ESA, can livestock owners shoot and kill a wolf that is actually attacking a cow or sheep. They must instead call the F&WS, who is supposed to, but often does not, send out someone to hunt down and kill the offending wolf.

So, for all the hoopla about livestock growers being compensated for wolf-caused losses, it’s just propaganda unrelated to the truth on the ground. Just go ask the ranchers themselves.

In 22 years, Defenders of Wildlife has only paid $1.3 million in compensation in 895 instances, which comes to about $1452 per incident. But they list 3,832 instances of predation on their own website. And this number is highly suspect, as they have motive to deny the source of predation.

In some cases the ESA and the F&WS have literally driven stockmen out of business by denying grazing permits and imposing draconian land-use rules that make it impossible for them to survive economically, in order to favor wolf recovery, often as the result of lawsuits filed by groups like Defenders of Wildlife.

What’s particularly galling to ranchers is that when the F&WS did the science as the law requires, and determined scientifically that wolves in Idaho and Montana had recovered sufficiently in numbers to justify removing full ESA protections, Defenders of Wildlife and numerous other organizations immediately filed suit to prevent the delisting. And they succeeded, but only through technical shenanigans involving the letter of the ESA law and the definition of “discreet population segment.”

And the ESA itself ignores the fact that wolves are not an endangered species at all. There are many thousands of wolves in self-sustaining populations roaming freely in Canada and Alaska, not to mention Siberia, so there is factually no danger that wolves will cease to exist as a species, even if they are eliminated from the lower 48 states.

But, live by Congressional law, die by Congressional law. That’s the way it works in the United States.

What the Congress did was to lawfully amend the ESA as regards wolves in the northern population segment of the Rocky Mountains. Contrary to what Defenders of Wildlife and other say, this amendment poses no danger to other species greater than they already face. Congress wrote and passed the ESA, and Congress has always had the plenary power to amend or even repeal the ESA, in part or in whole, at its discretion.

While Defenders of Wildlife and others would like for the ESA to be enshrined as a constitutional Amendment that cannot be changed by Congress alone, that’s not the case, nor will it ever be the case, we should all hope.

Congress did nothing more than examine the scientific evidence, which the F&WS itself says is compelling enough to justify delisting only parts of the population of wolves based on state boundaries, and it amended the law to provide that because that single species has recovered sufficiently to justify delisting within a particular state, it’s appropriate in this case to permit the state, under continuing federal supervision, to take over management of the wolf population.

In other words, Congress simply affirmed the scientific judgment of the F&WS and acted to preserve the intent of the ESA while resolving a legal conundrum created by radical environmental advocacy groups that was interfering with just and reasonable public policy decisions. It’s not, contrary to the assertions of Defenders of Wildlife, any threat to any other species.

Congress did what it is authorized to do, and as Judge Molloy wrote in his final decision in April of this year, “No matter how useful a course of conduct might be to achieve a certain end, no matter how beneficial or noble the end, the limit of power granted to the District Court must abide by the responsibilities that flow from …political decisions made by the Congress.”

Judge Molloy also quoted the United States Supreme Court, which said, “Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto.”

Congress has the power to amend the ESA, and that’s exactly what Congress did, and both the courts and everyone else, including Defenders of Wildlife, will just have to live with that decision, just as private landowners and stockgrowers have been forced to live with the consequences, intended and unintended, of the imposition of the Endangered Species Act on them.

What’s sauce for the goose, is sauce for the gander.

© 2011 Altnews

The Colorado Hospital Transfer Act directly conflicts with Colorado Springs’ constitutional home rule authority

By Seth Richardson

The wisdom or necessity of the sale of city-owned Memorial Hospital to a private for-profit entity is a local issue subject to local democratic debate and decision making, as is the question of how Colorado Springs can spend the proceeds it might collect from such a sale. Neither are legitimate subjects for regulation or oversight by the state Legislature, according to the Colorado Constitution.

Much of the rhetoric being heard recently about the potential sale is focused on the requirements of the Colorado Hospital Transfer Act (CHTA), a state law enacted in 1998. This law says that the state Attorney General is empowered, among other things, to “ensure that any proceeds of the transaction are dedicated to… charitable purposes,” and he can require that the “proceeds… be set aside in an amount equal to the fair market value of the hospital assets being transferred.” Thus, the CHTA regulates how such money can be spent.

But the CHTA was never intended to interfere with home rule powers of municipalities, says former state Representative and Colorado Springs resident Andy McElhany, who was serving in the Legislature at the time. McElhany says of the CHTA, “Our intent was not to hinder the sale of municipally owned hospitals; the last thing we wanted was to prevent cash-strapped local governments from putting publicly owned assets like Memorial to their best and highest use for their citizen-owners. Rather, the thinking behind the 1998 legislation was to ensure that the sale of any private, nonprofit hospital ­which, in a sense, belongs to no one­ did not betray its charitable mission.”

Because the law fails to distinguish between publicly-owned and privately-owned hospitals in imposing this mandate, the law conflicts with the city’s constitutional home rule powers. Colorado Springs is a home rule city, and the decisions of the City Council on purely local matters are not subject to interference by the Legislature. Article XX, Section 6 of the state Constitution says:

“Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith… It is the intention of this article to grant and confirm to the people of all municipalities … the full right of self-government in both local and municipal matters.”

One of the most fundamental powers of a municipality under home rule, one that is inherent and inseparable from the  power to collect revenue, is the power to determine how those revenues are spent, subject only to the rules of the municipality itself. The power to dispose of city assets is solely vested in the City Council or in the residents of the city, and if the voters of the city decide that it is no longer necessary or desirable to have a city-0wned hospital, that decision is final. Likewise, if the City Council chooses to spend the revenues collected from a sale of the hospital on fixing bridges or potholes, that decision too is not subject to interference by the Attorney General or the Legislature.

While the state Legislature certainly has the power to regulate private hospitals and at least arguably the Attorney General, pursuant to the CHTA, can make regulations and set conditions on how private state-licensed hospitals operate that will protect the public interest in affordable health care, both the decision to sell and the allocation of the proceeds of the sale of hospitals owned by home rule cities is beyond its authority to regulate, and squarely conflicts with the city’s constitutional home rule powers.

The state Supreme Court has said that, “the legislature cannot prohibit the exercise of constitutional home rule powers, regardless of the state interests which may be implicated by the exercise of those powers.”

The violation of the sovereign home rule powers of the City of Colorado Springs found in the Colorado Hospital Transfer Act is something entirely aside from the local question of whether Memorial Hospital should be sold to a private for-profit entity. The City Council must challenge the state’s authority to tell Colorado Springs how to spend it’s own money, if for no other reason than in order preserve the city’s sovereign constitutional powers.

© 2011 Altnews