During his 2006 campaign against then-Sen. Conrad Burns, candidate Jon Tester made many promises. Among them, Tester promised he wouldn’t use “riders,” which are amendments tacked on to unrelated bills, to legislate environmental issues.
Only two months ago, Tester broke that promise when he added a rider to the Omnibus Spending Bill in December to remove wolves from the Endangered Species List. That bill died, but now Tester has slipped another wolf rider on the Senate’s latest Continuing Funding Resolution. Not only does his move set a very dangerous precedent that may well destroy the Endangered Species Act, it also violates the constitutional rights of all Americans.
Tester faces a tough 2012 re-election challenge from U.S. Rep. Denny Rehberg and one of the issues both candidates have focused on is last summer’s federal court ruling that put gray wolves back on the Endangered Species List. The wolves had been delisted in Montana and Idaho by U.S. Fish and Wildlife Service in 2009 and both states subsequently held hunts that indiscriminately killed hundreds of wolves. Wyoming, which is part of the regional wolf recovery area, does not have a federally-approved wolf management plan and the judge ruled that wolves cannot be selectively delisted for the states of Montana and Idaho.
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In a political end run to provide a dubious “win” over his Republican challenger, Tester’s rider legislatively removes gray wolves from the protection of the Endangered Species Act by directing the Secretary of the Interior to reissue the rule delisting wolves in Montana and Idaho. But the true travesty, and one that may carry significant “unforeseen consequences,” is that Tester’s rider also insulates the reissued rule from any judicial review, thus denying all American citizens their First Amendment Constitutional rights to challenge government decisions in court.
Tester, having pledged to uphold the Constitution, should know that the First Amendment says “Congress shall make no law” that restricts the right of American citizens “to petition the Government for a redress of grievances.” Yet, his rider does just that.
The rider on the “must pass” desperation funding bill will return wolf management authority to all states in the Northern Rockies region except Wyoming and short circuits ongoing negotiations with the Department of Interior to try and reach a compromise on wolf recovery and management.
Tester’s spokesperson, Aaron Murphy, claims the “provision delists Montana wolves and returns their management to our state.” Murphy says Tester “pushed for this because wolves need to be managed by Montanans who know best how to keep them under control.” But actions by both Idaho’s Gov. Butch Otter and Montana’s Gov. Brian Schweitzer give lie to Tester’s contention. Otter has repeatedly stated his desire to kill as many wolves as possible in Idaho, and Schweitzer has recklessly encouraged ranchers to ignore the law and kill wolves regardless of Endangered Species Act protections. Schweitzer’s actions have spurred Montana’s Republican-dominated Legislature to pass measures that would declare the Endangered Species Act unconstitutional and nullify it in Montana. Turning over control of wolves to governors who encourage people to break federal law under the rubric of “local control” would be like turning over the civil rights problem in the ’60s to the governors of Mississippi and Alabama.
Should Congress adopt Tester’s measure, it will be a tragedy not just for wolves and many other endangered species, but for the rule of law nationwide. Besides gutting the Endangered Species Act, Tester’s last-ditch attempt opens the door to others who can and will use similar riders to destroy our nation’s bedrock environmental laws without even providing citizens a chance to voice their views at a hearing, let alone have their Constitutionally-guaranteed right to judicial review.
Tester should keep his campaign promise and drop his rider. If it’s such a worthy idea, he should have no problem passing individual legislation to accomplish his goals without destroying the Endangered Species Act and citizens’ right of judicial review. Bills, unlike riders, must have a hearing, which gives the public a chance for review and input. Montanans, and all Americans, deserve no less.
Michael Garrity is executive director of Alliance for the Wild Rockies.