House and Senate appropriators have agreed to include a bipartisan proposal to remove Endangered Species Act protections for gray wolves as part of a final compromise to fund the government through the end of the fiscal year.

The agreement came just hours before a federal judge in Montana rejected (pdf) a more limited delisting proposal by environmentalists and the federal government that would have returned wolf management to Idaho and Montana but would have required other steps to ensure a continued recovery of the species throughout the northern Rockies states.

The legislative proposal by Rep. Mike Simpson (R-Idaho) and Sen. Jon Tester (D-Mont.) -- apparently one of the only environmental policy riders to survive tense budget negotiations late last week -- would have nullified the settlement even if it had been approved by U.S. District Judge Donald Molloy.

Both lawmakers have argued that the budget rider is necessary to bring relief to hunters, ranchers and wildlife officials in their states who have warned that wolves are preying on livestock and causing serious declines in big-game herds.

"This wolf fix isn't about one party's agenda. It's about what's right for Montana and the West," Tester said in a statement Saturday morning. "It's high time for a predictable, practical law that finally delists Montana's wolves and returns their management to our state."

Tester and Simpson succeeded earlier this year by inserting identical language in their chambers' continuing resolutions that would have reinstated a 2009 decision by the Fish and Wildlife Service to delist the gray wolf in Idaho and Montana and parts of three other states, while barring the decision from being challenged in court.

Jennifer Hing, a spokeswoman for the House Appropriations Committee, yesterday said details of the language to be included in the final budget package were not yet available.

The legislative proposal has drawn fire from environmental groups that had successfully argued in court that FWS could not delist wolves along political borders in Montana and Idaho if they were not also being delisted in Wyoming.

Ten environmental groups and FWS last month proposed a settlement that would have delisted wolves in Montana and Idaho but retained protection in Wyoming until an acceptable management decision is reached (E&ENews PM, March 18).

Contrary to the Tester-Simpson proposal, the settlement would have maintained protections for wolves in parts of Washington, Oregon and Utah, where populations are relatively low, and would have required independent scientific review of wolf management progress to ensure the species remains genetically viable, among other provisions.

"The settlement is definitely far superior to the Simpson language that was in H.R. 1, which would simply delist wolves throughout the northern Rockies," said Bill Snape, a lead attorney for Center for Biological Diversity, one of the 10 settling parties. "If Tester really cares about wolves and about settling this problem once and for all, he will embrace and lead the administrative conservation measures identified over the past several months rather than inflaming the situation further with a bogus political delisting."

Molloy, who last August ruled in favor of the groups in restoring ESA protections, said Saturday that the settlement would have required him to sanction a breaking of the law.

In a 24-page ruling, Molloy said plaintiffs had agreed FWS's delisting rule was based on "an erroneous interpretation" of the statute and that the agency's mistake was "not a technical violation, but amounted to wrongfully removing ESA protections."

"They now ask the court if the wolf in Montana and Idaho -- an endangered species -- can by court action be excused from the ESA's protective provisions," he wrote. "This proposition presents a legal conundrum that goes directly to the ideas behind the rule of law."

Molloy also wrote that while the state of Montana supported the settlement, four of the 14 original plaintiffs challenging the delisting decision had opposed it because it would have lifted most of the protections they had worked to reinstate.

"It is inappropriate in my view to indicate approval of a settlement that is approved by some of the parties, deplored by others, and protracts the dilemma for all who have been engaged in the litigation dispute," Molloy wrote.

Click here (pdf) to read the court ruling.

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