Earthjustice’s lawyers chastise Schweitzer for comments on wolf management.
By ROB CHANEY of the Missoulian
Earthjustice's lawyers chastise Schweitzer for comments on wolf management
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Ken Cole is a 5th generation Idahoan, an avid fly fisherman, wildlife enthusiast, and photographer. He is the interim Idaho Director for Western Watersheds Project.
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What kind of world do we live in when the chief “law-maker” openly advocates violating the law? So, he’s frustrated and upset… big deal – that’s the system we have (the rule of law). We all have to follow some laws we don’t like and if we all decided to be like Schweitzer, we’d have nothing but anarchy.
IDhiker,
Certainly seems the advocacy for civil disobedience is from the mouth of (a) duly elected official(s). A face off between the federal government and the state involving an open dispute after years of attempted complaince with federal law. There is a significant difference here.
Anarchy is an interesting word to use in this instance. We can, I believe, find instances of civil disobedience in our history. Ever read about “Prohibition” and the failed attempts of enforcement of this law?
WM,
I guess the real difference is that if you or I did what Schweitzer is doing, we’d get busted. But he can get away with it because he’s the governor.
Now the Montana Legislature wants to “nullify” certain Federal laws, too. But, they then had the nerve to overrule the city of Missoula’s Anti-Discrimination Law. So, is Missoula now supposed to vote to “nullify” the state legislature’s vote and enforce their law anyway?
This is a slippery slope with potentially no end. Can citizens now “nullify” any federal, state, or city law that don’t approve of. I can see some people think so.
IDhiker,
The Missoula issue is not a law, it was a city ordinance, Now I don’t condone any type of discrimination, but in fact what the legislature did, was pass a bill to prevent any city or town to pass ordinances that may be in conflict with state laws..
Missoula likes to think it is a state upon itself and pass ordinances all the time that is in conflict with the state laws and the state constitution, they have been doing it for years…
My dictionary defines anarchy as: “The state of society where there is no law or supreme power; a state of political disorder.”
I would agree that if disobedience occurs in isolated instances (to one particular law), that it could be called “civil disobedience,” but, in my opinion, if disrespect for the law goes to the extreme (ignoring many laws), it is then anarchy.
Schweitzer is advocating disobedience to one law, but when coupled with the legislature, it becomes several. I also think when high officials show contempt for laws, it promotes the same thinking among the general populace.
To add, we need a anti-discrimination law state wide, not just city ordinances…
Saves Bears,
Ok, but my dictionary refers to an ordinance as, “a local law or regulation.” I think we’re splitting hairs, here.
“Missoula likes to think it is a state upon itself and pass ordinances all the time that is in conflict with the state laws and the state constitution, they have been doing it for years…”
But, wouldn’t you agree that the Montana Legislature is now voting on items that are in “conflict” with federal laws?
IDhiker,
I never said they were not, and I have never supported the nullification movement in any way, shape or form..I have wrote, and talked to the Governor a few times since this has happened and have been writing my representative since they introduced many of these silly bills…
Currently I would be more worried about what Idaho did with their bill than what has happened in Montana so far, we do have a Governor that will veto these silly bills, albeit a waste of time, in Idaho, you don’t!
“Can citizens now “nullify” any federal, state, or city law that don’t approve of. I can see some people think so.”
And of course the governors know that, which makes it even more irresponsible. Especially when they have the power to order law enforcement to not enforce the laws they disagree with.
IDhiker,
There is a legal theory called “substantial compliance,” which is usually applied to contract law. However, I think the principle, by analogy, is important here. Schweitzer is attempting to substantially comply with the ESA, but he sees a need to go outside the law with a very narrow exception, the conditions of which he states in his letter.
People really need to read the Schweitzer letter carefully. I don’t think it advocates widespread violation of the ESA regarding wolves. It does not go as far as to call the general citizenry to action. It is very specific in its direction to state staff, and supports certain “prosecutorial discretion” in specific instances.
I think the message here is, something like this:
“Well, they are your wolves, according to federal law, Mr. Secretary, and you {the federal government by judicial decision} won’t let us manage them, so you deal with it. And, in the meantime, if they are responsible for actual or eminent distruction of private property (livestock) we are going to deal decisively and we are authorizing private parties to protect their property. We are also going to seek authority from the federal government under the ESA to kill wolves that impact our elk herds (state managed property pursuant to law).
Does it go any further than this?
I think the effort to use shorthand in this instance, just as this Earthjustice letter seems to do, actually does more to stir the citizenry to action, than taking the letter for what it actually says. Of course, we know Earthjustice lawyers are really Sierra Club’s litigation arm, just known by another name.
Strategically, I think the Earthjustice “chastisement” was a bad move.
“Currently I would be more worried about what Idaho did with their bill than what has happened in Montana so far, we do have a Governor that will veto these silly bills, albeit a waste of time, in Idaho, you don’t!”
Savebears,
I totally agree with you on this!
WM,
I completely agree with you that what Schweitzer actually wrote (I did read his letter), was not what was trumpeted by the newspapers and TV news.
For some reason, the reporters sensationalized his letter to mean things it didn’t really say (maybe to sell more papers). But, I don’t think the general public read his letter carefully like you did, and they more likely believed the reporting, which unfortunately is what counts. Perhaps Schweitzer should have spoke up and corrected misinterpretations after the news hit.
My impression of the message was more like this:
“I am profoundly frustrated. I am going to not only ignore, but actively break federal law, but in a legal way through my authority as governor (wink). I won’t prosecute people defending their property (wink wink). Even though it’s a violation of federal law, I will order whole packs to be killed to the extent that I can within my authorities as governor.”
The problem is that while he may have prosecutorial discretion regarding enforcement of state law, he’s going far beyond that by ordering state agencies to violate federal law. He also has to be aware of the message he is sending to the populace, which is why he would undertake this kind of grandstanding.
“We are also going to seek authority from the federal government under the ESA to kill wolves that impact our elk herds (state managed property pursuant to law).”
Wrong. The whole point is that HE IS NO LONGER GOING TO ASK PERMISSION. Rather, he is going to unilaterally kill entire pack, no matter where they are, in violation of the ESA.
Simply because he prefaces his statements with things like “to the extent permitted by law” and “to the extent that I can within my authorities as governor” doesn’t make what he is actually proposing permitted by law, or within his authority as governor. He’s just covering his ass so apologists can disingenuously claim that he’s acting in good faith.
Dude,
You could be right about this. I did see Schweitzer on CNN, and he backtracked somewhat on this issue.
“So, is Missoula now supposed to vote to “nullify” the state legislature’s vote and enforce their law anyway?”
YES! love it!
“To add, we need a anti-discrimination law state wide, not just city ordinances…” Agreed. So what’s that bill number?
When you get elected to public office in the Rocky Mountain States, I guess delusions of grandeur just come with the territory. I “nullify” state taxes until there is someone in Helena who represents me.
Talk about a nightmere: Palin vs. Schweitzer for President in 2012!
Alan,
I said, what we need, not what we have…
Seems like that’s what the current teabagger strategy looks like.
“A unionized public employee, a member of the Tea Party, and a CEO are sitting at a table. In the middle of the table is a plate with a dozen cookies on it. The CEO reaches across the table and takes 11 cookies. He then turns to the Tea Partier and says, “Look out for that union guy. He wants a piece of your cookie.”
It’s easy to advocate for anarchy when you’re the local strongman. It seems like we’re bringing Afghan-style politics to America rather than the other way around.
I think it’s closer to Latin American-style oligarchy.
What do you expect when you have the President of the United States doing the same thing picking and choosing laws his administration will not enforce?
++the President of the United States doing the same thing picking and choosing laws his administration will not enforce?++
Well, that has happened in every administration for many, many years. We only need to look back at Bush, and Clinton to see what happened in the last 16 + 2 years for more of it. The question is which laws get ignored and why – immigration law enforcement, anyone?
Yes but I can’t ever remember a sitting president openly announce to the world they are not going to enforce a particular law, and I can only remember a governor doing it once at which point the troops were sent in.
Look at Reagan. While he maybe didn’t come right out and say that he wasn’t going to enforce environmental laws, he appointed agency administrators who were hostile to those agencies’ missions, and defunded and fragmented enforcement efforts. He just called it “deregulation” and “cutting red tape.”
Also, as the leader of the “executive” branch, the president has some discretion to “execute” federal laws as he sees fit. Similar to a prosecutor, the president doesn’t have to apply the law in the most rigorous fashion possible. There may be practical and policy reasons for exercising that discretion.
On the other hand, governors head the executive branch of their respective states. They can choose how they want to enforce state laws, but don’t get the choice of which federal laws to obey. The Supremacy Clause of the U.S. Constitution makes clear that federal laws are “the supreme law of the land . . . anything in the constitution or laws of any state to the contrary notwithstanding.”
As far as civil disobedience goes – there’s a fine line between nobly standing up against some fascist law and being a brat and refusing to abide by laws created through the democratic process. I think the governors are largely grandstanding at the behest of powerful lobbying groups.
Those poachers sneaking around in the woods and poaching/poisoning wildlife aren’t engaging in civil disobedience, they are just breaking the law. Civil disobedience is undertaken openly to make a statement, and generally involves getting caught. Sneaking around and hoping you don’t get caught is more passive-aggressive and selfishly motivated.
The difference between civil disobedience and anarchy also concerns the legitimacy of the law. Well, the ESA is a valid law that was passed nearly unanimously. It was a product of the democratic process.
You can’t argue your respect for the Constitution and the democratic process out one side of your mouth, and then advocate for ignoring those principles out of the other. Hence, it’s anarchy – not civil disobedience. If the law can be amended through the legislative process, that’s another matter. But that’s not what we’re talking about.
Dude,
You hit this nail on the head. To carry it further, if a person who disregards federal law and kills wolves is only committing civil disobedience, would it then follow that vandalizing the wolf killers vehicles also is civil disobedience? How about vandalizing state assets involved with wolf killing? I think we’re heading for a lot of trouble when we try to equate “taking the law into your own hands,” or ignoring the law, with civil disobedience.
Dude,
But, in fact that is why we have those three branches of government. EPA, during the pre-Reagan days, had done a royal job of botching up the CWA, CAA, SWMA and a few other federal laws with less than a ten year operating history, spending hundreds of millions of dollars on compliance with ridiculous bureacutrat interpretations of the law. I can give examples, but won’t here, other than to say throughout the West municipalities were coerced under threat of federal fines to go to Advanced waste treatement for ammonia removal from effluents in very small mixing zones (ammonia converts to nitrate in a very short time, and the unionized fraction is the portion which is toxic to fish, and this varies dramatically based on temperature and pH)., and then downstream from the “mixing zone” the stream could legally be dried up to satisfy a senior water right, so there were no fish there anyway. Lots of money was spent and zero benefit resulted, all the time pissing off the states.
WM,
I agree with the separation of powers argument. I realize that that kind of discretion is within the president’s powers. Sometimes I agree with it, sometimes I don’t My point is that it cuts both ways regardless of any individual’s preference, and it’s not any individual citizen’s call to make. That’s what elections are for.
IDHiker,
I agree that civil disobedience in this instance means for the person who does violate federal law by killing a wolf needs to show up on the federal courthouse steps evidence in tow for the definition to be met, and to willingly accept the consequences of the “illegal act.”
In the case of “vandalism” or worse by individuals on the person or property of an alleged wolf killer, that is governed by an entirely different set of state laws having to do with rights and duties of individuals toward each other in civilized society. On the other hand, if someone trashes a piece of federal property, like an FWS truck (or an ESA protected wolf), then the feds get involved.
WM,
You seem very well versed about legal issues. Maybe someone has already asked you, but are you involved professionally with the legal system?
Dude,
++These were ambitious statutes {CAA, CWA… etc.} passed by an optimistic legislature reacting to the events of the day. It wasn’t that the agencies were incompetent, it’s that the goal Congress gave them was impossible to attain++
We will probably have to disagree on whether there were years of agency “incompetence” in the early EPA, which seems to have continued on for years, wasting billions of dollars on improperly framed solutions that did not produce desired results.
Some critics of the ESA are using this exact argument as it applies to keeping wolves on the ESA, when maybe they should not be there based on science and a law that appears to be interpreted in a way that limits flexibility in dealing with “distinct population segment” and “experimental population” management. These seem to be unanticipated issues as the law is now being administered.
I do not think there has been a more stellar example of rapid species recovery and resilience, than the NRM and GL wolves. So, the legal obstacles that keep being tossed in front of the NRM and GL delisting, day after day, suggests that there might be a need for some “mid-course” corrections to the law. The trouble is that the best one for the NRM, the Tester/Baucus bill from last year got dissed by wolf advocates early on. Now, more radical alternatives have gained traction. The key Western states, I count at least 5 now, have had a belly full (ID, MT, WY, UT and maybe OR for the NRM), and MN, MI, WI and the Dakotas for the Great Lakes may be ready to throw in a sympathy vote.
________
IDhiker,
Yes, trained as a lawyer and scientist.
WM,
I agree that the reintroduction has been a biological success story. I also agree that as of today, the wolves aren’t in danger of extinction. However, if the only thing keeping the population secure is the protections of the ESA, the lack of regulatory mechanisms once delisted stand a good chance of putting them right back at risk.
You know the story with Wyoming’s predator designation, and now Idaho has just come out and suggested bounties.
“Some critics of the ESA are using this exact argument as it applies to keeping wolves on the ESA, when maybe they should not be there based on science and a law that appears to be interpreted in a way that limits flexibility in dealing with “distinct population segment” and “experimental population” management. These seem to be unanticipated issues as the law is now being administered.”
Well, the ESA was not intended to be a flexible law. It’s pretty short and full of “thou shall nots.” However, I think my argument about Congress’s lack of foresight applies to the ESA as well as the CAA. In that sense, I think we’re in agreement.
For example, “distinct population segment” is a term Congress just invented. It’s not defined in the text of the ESA, and it has no specific technical or plain meaning. The reality of managing a species that tends to wander thousands of miles doesn’t mesh well with…whatever it was Congress actually had in mind.
I think the experimental designation also lacked foresight. I think it was a compromise thrown in to speed the wolf’s recovery and appease ranchers, with the expectation that once the wolves were interbreeding, they would come off the list. It probably would have worked fine too, if Wyoming’s legislature hadn’t decided to act like a bunch of drunk cowboys. Now we are in a situation where the experimental and naturally dispersing wolves are interbreeding and the population is healthy, but we can’t delist because Wyoming won’t manage the wolves in a way likely to maintain the minimum population goals set forth in the recovery plan.
Since wolves can only be designated as experimental populations “when, and at such times that the populations are wholly geographically separate,” this leaves the situation in a place no one intended. They are biologically recovered, and experimental populations are almost certainly interbreeding with natural dispersers. However, the wolves can’t be delisted because of Wyoming’s “inadequate regulatory mechanisms,” and they can’t be experimental anymore because the populations are no longer anything close to”wholly geographically separate.”
The court could get around this again by using the funny definition of “population” it did in McKittrick (defining a population as multiple breeding wolves, not individual dispersers, and holding that wolves receive protections based on where they are found, not where they are from). But that is less plausible today because we know there is so much interbreeding going on.
In the ultimate twist of irony, they could also get rid of the experimental designation and make all of the wolves one fully protected population. That would cause a shitstorm, but in my opinion would be the most faithful application of the law as written.
If Wyoming would just create a reasonable management plan that allowed genetic dispersal and commit to maintaining 15 breeding pairs of wolves on land they actually control (rather than leaving it mostly to the NPS in Yellowstone), the wolves could be delisted tomorrow. But Wyoming has no interest in doing that.
Wyoming would rather thumb its nose at the federal government than save its relationship with ID and MT. Wyoming would rather thumb its nose at the federal government than save the poor “decimated” elk population. The hangup is WY’s idiotic obstinance and refusal to be a team player, not any major inherent flaw in the ESA.
Dude,
…..and there you have the “hold ID and MT hostage” argument in a nutshell. Nicely stated and I pretty much agree with nearly all you said.
Do you suppose those authors of the ESA would have agreed with that, should they have known something like the WY scenario would happen? Or, would they have sought a practical way around it, like the Tester/Baucus bill from last year, which even included a five year test drive with a sunset provision?
I think a fantastic opportunity has been squandered by not keeping the Tester bill alive.
Right, but the feds and the ESA aren’t holding ID and MT hostage, Wyoming is. The blame should be placed appropriately. It seems like it often times is not.
“Do you suppose those authors of the ESA would have agreed with that, should they have known something like the WY scenario would happen? Or, would they have sought a practical way around it, like the Tester/Baucus bill from last year, which even included a five year test drive with a sunset provision?”
It’s hard to say. The first big ESA case was TVA v. Hill, where the snail darter stopped the completion of an almost finished dam. The Court held that Congress meant what it said in the ESA. Later, the “god squad” and the DPS and 10j designations were added to the ESA by different sessions of Congress.
In short, it’s difficult to say. It’s not like the ESA hasn’t been amended before, but those amendments mostly added to its conservation purpose, not subtracted from it. Those amendments also largely operated within the existing framework, only tweaking it a bit based on set criteria and procedure. On the other hand, these amendments pretty much ignore the entirety of the act, but promise to do so just this once.
“I think a fantastic opportunity has been squandered by not keeping the Tester bill alive.”
I’m on the fence about the Tester bill. I thought its terms were reasonable, but I didn’t like that it set a precedent of straight-up delisting a species for political reasons. I think the ESA is basically sound, and that it shouldn’t be monkeyed with just because one state has the ability to derail the process. I’d rather Wyoming was peer pressured into acting with respect for its neighbors.
++Right, but the feds and the ESA aren’t holding ID and MT hostage, Wyoming is. The blame should be placed appropriately.++
Placing blame and actually solving an institutional deficiency of the law are two entirely different things. There would be no downside for a DPS management scenario that left ID and MT (assuming both had good faith intent and scientifically acceptable plans for delisting) while keeping wolves in WY ESA protected until such time that they truly had an approved plan (with no predator zone). The key issue Judge Molloy’s last ruling has to do with the inability of the Act to permit such a practical solution.
It is this apparent flaw in the ESA that is creating the backlash we are now seeing play out. Laying “blame” on WY and waiting for them to come around does nothing to propell the delisting issue forward. WY likes that, and it also gives MT and ID the excuse they need to also say we won’t play anymore!
Let me pose a question – What could possibly get WY to come around, in the way of a stick or a carrot?
I just don’t see this situation as the result of a flaw in the ESA. The listable units are what they are for a reason. I think once you start carving up listable units for non-biologically based reasons, you’re on a slippery slope. If Valley County has a robust wolf population, and Ada County does not, should Valley county get to delist too? Why not just delist the Thunder Mountain pack if that population is healthy enough? You could draw incrementally smaller circles around these things until you lose sight of the goal.
I do see Wyoming’s actions as blameworthy. I don’t see the effects of that blaming Wyoming being productive or counterproductive. I simply see it as justified, and I think it should be considered as we move forward. I do think it would be counterproductive to reward Wyoming, or to blame the ESA for Wyoming’s misdeeds.
It’s like if Wyoming, Idaho, and Montana were all riding in a car together, and Wyoming grabbed the steering wheel and crashed the car into the ditch. Would you blame the car? The ESA was working just fine, and we were all set for delisting, then Wyoming threw a wrench into the works.
“Let me pose a question – What could possibly get WY to come around, in the way of a stick or a carrot?”
Let them eat cake. From a practical standpoint, there’s not much that can/should be done in the way of new incentives. Maybe more of the status quo, since they don’t seem to like that much. Let the ranchers and outfitters pressure Wyoming internally. Let Idaho and Montana pressure Wyoming through back channels. Let Wyoming know that they aren’t going to get state management authority until they play ball.
I can’t imagine there’s much likelihood of a new “stick” given that Congress has so many other problems to deal with, and the current makeup of the House. The states can’t do much (even if they wanted to) without running afoul of the commerce, privileges and immunities, and equal protection clauses. This all might be a moot point if one of the delisting bills makes it through attached to the budget.
But honestly, I don’t really care if the wolves EVER come off the list. I don’t care if they DO come off either, as long as it is done responsibly. The people who are jumping up and down about this are the only ones who the continued ESA protections is bothering. There might be some poaching and grandstanding in the interim, but that’s not going to bode well in the court of public opinion. It makes the other side look like monsters.
Poaching certainly won’t bring us back to 1970, and it won’t get the wolves delisted. It’ll guarantee that the wolves are still protected under the current law. Some poachers will get caught after they brag to the wrong person. Maybe FWS will even bring more wolves if poaching/poisoning has a significant impact. I bet Canada would be willing to donate a few more.
There are only two ways out of this mess: change the law, or follow the law as written and get state management authority. I think the law is fine as it stands, and I think it would be irresponsible to change it. Idaho and Montana were able to comply the first time around. The wildlife is also doing fine with the status quo. Most hunting units were at or above their objectives. All of my friends filled their elk tags this year, despite all the hyperbolic whining by the tea party wackos.
I generally don’t have a problem with delisting populations by state, so long as the state in question (a) meets the provisions set for the the species’ Recovery Plan, and (b) currently contains and commits to maintain a minimum viable population of the species in question. The problem with the state-by-state approach in the NRMs is that all of the signals states are giving politically suggest they will not be committing to maintain an MVP (i.e., the regulatory mechanisms present to protect wolves are still inadequate).
But also, those agencies were given monumental tasks by their organic legislation. When the CAA requires the creation of health-based standards for every pollutant, and requires compliance with those standards regardless of the non-existence of sufficient pollution control technologies, it was not a plausible task to fulfill in the allotted time.
These were ambitious statutes passed by an optimistic legislature reacting to the events of the day. It wasn’t that the agencies were incompetent, it’s that the goal Congress gave them was impossible to attain. Hence all of the CAA amendments.
Oops, this was supposed to be in response to the above thread.
The Obama administration says it will enforce DOMA, but will no longer defend it. Difference.
Just a note on nullification.
The Idaho State Senate, by means of one of its State Affairs standing committees, has probably killed the “Obamacare” nullification that had passed the Idaho House of Representatives.
It seems like legal and constitutional arguments swayed a majority away from this Confederate-like move.
In this Tea Party atmosphere, the Idaho Republicans who voted to kill nullification showed some courage. Political veteran Randy Stapilus writes of it.
A locus of cowardice, and courage. By Randy Stapilus. Ridenbaugh Press.
WM & Dude, the bagman,
Hey, thanks for all your posting back and forth here. It is always about the politics, and is never ending in the colossal mess it ever evolves into. But having you lawyer types wrestle about with the nitty gritty stuff, good ideas, and great legal interpretations, help those like me trying to decipher things my life experiences is comaratively shallow on, in those regards. Great points, keep up the fancy-dancing – ( a pow wow term, but you probably already know that) its a fast and furious wardance much needed. More people need to learn the steps so they too can get into the dance. Thanks again.
Yes, I know a fancy dance isn’t a war dance. I meant it symbolically of the dance we need to be doing, and I guess, to a degree we are doing in our postings. We know not where our casting of the stones ripple will land or what other things it might end up to be a tidal wave to.