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Comment: Wolf Delisting And Designation As Distinct Population Segment

March 11, 2008

Gray WolfI received the below comment that was sent to the U.S. Fish and Wildlife Service pertaining to the removal of the gray wolf from protection under the Endangered Species Act and the intent to list the population of gray wolves in the Northern Rocky Mountains as a “distinct segment”.

With permission to republish, here are comments made by Gary Marbut of the Friends of the Northern Yellowstone Elk Herd.

May 8, 2007

NRMGrayWolf@fws.gov
Subject: “RIN number 1018-AU53

U.S. Fish and Wildlife Service
Western Gray Wolf Recovery Coordinator
585 Shepard Way
Helena, Montana 59601

In re: Comment—Canadian Wolf Delisting and Designating the Northern Rocky Mountain Population of Canadian Wolves as a Distinct Population Segment

Sent via email

Dear Sirs,

I opposed the initial “introduction” of Canadian Wolves into Montana, support the earliest removal of these wolves from protection by the federal government, and oppose any Distinct Population Segment designation for the following reasons:

Wolf delisting

1. Wolves are not endangered and federal protection of wolves should not have been asserted in the first place. Wolves have never been threatened with extinction. There are tens of thousands of wolves living and doing well throughout the Northern Hemisphere, in Canada, Alaska, Scandinavia, Russia, Mongolia, China, Korea, and many other places.

The only possible rationale for asserting that wolves were threatened in Montana is that wolves used to be here but are not here now. Extension of this logic requires that Grizzly Bears must be “reintroduced” into the Los Angeles basin, the most historically famous Grizzly habitat in the U.S. This same logic requires that if a Tyrannosaurus Rex can be recreated from genetic fragments, ala Jurassic Park, then T-Rex must be “reintroduced” through the U.S., regardless of cost or impact. Of course, these extensions of the same rationale used for wolves are nonsensical, which demonstrates the nonsensical nature of the rational used to foist wolves upon the people of Montana.

2. Congress does not have constitutional authority to impose wolves on Montana via the Endangered Species Act (ESA) and the United States Fish and Wildlife Service (FWS). Congress has only those specific powers enumerated in the United States Constitution. Among those enumerated powers is the power to “To regulate commerce with foreign nations, and among the several states.” (Article I, Section 8.) The authority Congress asserts for passage and enforcement of the ESA is the enumerated power to “regulate commerce, among the several states,” known as the “Commerce Clause.”
There is inadequate commercial nexus of commerce in wild wolves to justify imposition of wolves on Montana based on authority found in the Commerce Clause. See U.S. v. Stewart (9th Circuit, Kozinski opinion) and U.S. v. Lopez (USSC).

3. Wolves are having a gigantic and unacceptable negative financial impact upon the people of Montana, which amounts to a tax on Montana for a federal purpose. The United States Supreme Court (USSC) held in New York v. U.S. and in Printz v. U.S. that the Congress may not compel the resources of a state. However, that is exactly what is happening in Montana. Not only are wolves having a huge negative financial impact on Montana’s culture and industry of hunting and stockgrowing, but Montana is left to pick up the pieces with a necessity to “manage” wolves according to a federally-acceptable plan with no concomitant plan in place for federal funding for this federal program. This is akin to the city forcing you to stock your own property with rodents and termites and then requiring you to fund the predictable repairs associated with such pests.

4. Conflict with Montana laws. Federal laws prevail over state laws and constitutions only when the federal laws in question are well founded in authority clearly offered in the U.S. Constitution. As asserted in item # 2 (above), Congress lacks authority to impose wolves upon the State and people of Montana. Therefore, precedence must be given to Montana laws in several issues stated below.

5. Montana to manage large predators. In 2003, the Montana Legislature passed and the governor signed a bill which became 87-1-217, M.C.A., and which requires the Montana Department of Fish, Wildlife and Parks (FWP) to manage large predators (specifically including wolves) to protect hunting opportunities, livestock, pets, and people using the Montana outdoors.
FWP claims that they cannot implement 87-1-217, M.C.A. as long as wolves are under federal protection. We believe that the FWS would claim that Montana may not implement 87-1-217, M.C.A. vis-à-vis wolves as long as wolves are federally protected. We believe both interpretations are wrong, and that Montana laws must take precedence, for reasons previously stated.

6. Terms of delisting established. In 2003, the Montana Legislature passed House Joint Resolution 32 (See:http://data.opi.state.mt.us/bills/2003/billhtml/HJ0032.htm), wherein the Montana Legislature established the public policy position of the State of Montana for State assumption of wolf management. HJ 32 passed the Montana House of Representatives by a vote of 76-21 and passed the Montana Senate by a vote of 48-1. HJ 32 established Montana policy concerning several significant issues, including the definition of a “breeding pair” of wolves, federal abdication of wolf authority upon assumption of Montana management, and federal funding for wolf management. None of these conditions have been met, which makes ongoing federal protection of wolves in Montana a violation of established Montana public policy.

7. Cooperative management agreement invalid. On July 5, 2005, the FWS and FWP entered into a “Cooperative Agreement” about the joint management of wolves in Montana. This management agreement was entered into without authority by FWP, and perhaps even without authority by FWS.

This Agreement is in conflict with 87-1-217, M.C.A., and with HJ 32 (both mentioned above). This Agreement is also in conflict with the intent of the USSC in Printz v. US (cited above) because it does not fully or adequately address the negative financial impacts of wolves in Montana, impacts on Montana’s hunting opportunities and industry, impacts on Montana’s agricultural community, and impacts on the management ability and budget of FWP.

8. Violation of the right to hunt in Montana. The people of Montana feel so strongly about the right to hunt that over 80% of them voted to amend the Montana Constitution to secure for themselves, and to prevent government interference with, the right to harvest wild fish and game animals (Article IX, Section 7, M.C.) It is axiomatic and a principle of jurisprudence that a grant includes the essentials. (1-3-213, M.C.A. “Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use.”) It would avail the people little to reserve to themselves from government interference a freedom of the press if the government were allowed to prohibit use of the ink which pressmen use to put words on paper.

In the same vein, it avails the people little to reserve to themselves the right to hunt if the huntable game is absent, having been consumed by wolves. There is no constitutional right found in the Montana Constitution for wolves to hunt, or for wolves to consume the huntable game. In fact, wolves are not mentioned at all in the Montana Constitution. In Baldwin v. Montana, the USSC said, “The elk supply, which has been entrusted to the care of the State by the people of Montana, is finite and must be carefully tended in order to be preserved.” The decision also included, “If the elk is to survive as a species, the game herds must be managed, and a vital part of the management is the limitation of the annual kill.” Thus, fostering or mandating a scheme to allocate a significant portion of huntable game to wolves violates the right to hunt the people of Montana have reserved to themselves in the Montana Constitution.

9. Non-residents have no right, individually, or collectively, to Montana game. The USSC established in Baldwin v. Montana, that individual, non-resident hunters have no right to the game in Montana. Conversely, denying non-resident hunters the right to game in Montana does not violate either their equal protection or privileges and immunities.

The theory that Congress, representing many individuals, can make a claim on Montana game, via wolf introduction, that none of the individuals represented may make is oxymoronic. The game in Montana belongs to the people of Montana, a savings account that may not be raided by non-residents, no matter how many are operating collectively. For any national consensus to be interpreted as asserting otherwise is to propose that many individuals may give Congress power that no one individual has to give.

10. Violation of the Compact with the United States. In 1889, Congress, acting as agent for the several states, approved the Compact with the United States (Compact), as did Montana (Article I, M.C.), which included a guarantee at that time of the benefit of the limitations of the federal constitution to the people of Montana, and approving conditions of statehood, as they were both understood and accepted at that time. At that time, the ability of Montana to control predators and manage game was viewed differently than it might be today, but any change of view notwithstanding, there has been no amendment of the Compact, and no contract may be changed without the consent of the parties thereto.

The Compact specifically says that it remains “in full force and effect until revoked by the consent of the United States and the people of Montana.” Further, an essential element of the Compact is Ordinance 1, which says, “That the ordinances in this article shall be irrevocable without the consent of the United States and the people of said state of Montana.” Neither Congress nor the people of Montana have adopted any amendments to either the Compact or Ordinance 1, much less has both Congress and Montana done so.

The Compact and Ordinance 1, by contract law, freeze in time the authority of Montana to control and manage wolves, as that authority was viewed, interpreted, understood, and effectuated in 1889. There is no evidence whatsoever that in 1889 either the people of Montana expected, or the Congress intended, that Congress would seek protect, breed and restock wolves in Montana. Any such assumed power by Congress is therefore a violation the Compact.

11. Federal Data Quality Act. The original science done to support federal protection of wolves under the ESA did not meet the criteria required by the federal Data Quality Act.

12. The Ninth and Tenth Amendments. There is nothing whatsoever in the U.S. Constitution that can be interpreted, consistent with the times and culture of the adopters, to allow the federal government to impose wolves on the states over the objections of the states. In fact, there are two provisions in the U.S. Constitution that reserve to the people and the states authority over all topics and endeavors not specifically granted to Congress in the enumerated powers. Those provisions are the Ninth and Tenth Amendments. Thus, imposing wolves on any of the states is violative of the Ninth and Tenth Amendments.

13. Initial wolf introduction illegally funded. The initial introduction of wolves into Yellowstone National Park was an illegal act, because Pittman-Robertson funds were taken and used illegally for that purpose.
By the doctrine of the fruit of the poisoned tree, all wolves in the southern half of Montana are descendents of wolves illegally introduced into Montana using stolen money.

14. Canadian wolves as invasive species. Canadian gray wolves are a subspecies that have not before been in Montana. Canadian wolves are significantly larger than, and hunt with different patterns than, wolves that existed in Montana before the 1900s. Therefore, the Canadian wolves transplanted to Montana by the FWS are an invasive species, illegal to introduce into Montana.

Distinct Population Segment Designation

The proposal to designate wolves in the northern Rockies as a Distinct Population Segment is an administrative effort to lump Montana in with Idaho, Wyoming, Washington, Oregon, Utah, and perhaps Colorado for a multi-state, one size fits all wolf management strategy that will make Montana dependent upon compliance by all other states. Not only do we object to this administrative change, but we assert that it violates the ESA and possibly other controlling federal laws and it violates Montana laws and Montana sovereignty (Article II, Section 2., M.C.) for many of the reasons discussed above, including that it violates the contractual relationship between Montana and the other states (the Compact) by which Montana accepted statehood.

Conclusion

These are all arguments why it was a mistake for wolves in Montana to come under federal protection, why it was a mistake for wolves to be reintroduced into Montana, and why it is important to remove all federal protection and control at the earliest possible date

Sincerely,

Gary Marbut,
Member – Friends of the Northern Yellowstone Elk Herd

Posted by Tom Remington

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