The U.S. Court of Appeals for the Ninth Circuit denied (PDF) an emergency motion (PDF) for an injunction pending appeal to the extent the moving parties sought an injunction prior to the court hearing oral arguments, currently scheduled for November 8, 2011.  At issue in the underlying appeal is the constitutionality of a law (Public Law 112-10 section 1713 (Section 1713)) passed by Congress that directs the Secretary of the Interior to reissue a 2009 final rule which removed Endangered Species Act (ESA) protections for all wolves living in the Northern Rocky Mountain Gray Wold Distinct Population Segment outside of Wyoming (2009 Rule).  Section 1713 directs that this reissuance shall not be subject to judicial review. 

Without the ESA protection, the wolves can be legally hunted, and wolf-hunting season has commenced in both Idaho and Montana. 

As we previously discussed, the 2009 Rule delisted (thereby removing ESA protection) the distinct population segment of the gray wolf in the Northern Rocky Mountains, except in Wyoming.  In August 2010, the United States District Court for the District of Montana set aside the 2009 Rule holding that the ESA does not allow the Fish and Wildlife Service (Service) to divide a DPS into a smaller taxonomy.  The Service, Idaho, and Montana appealed.  Pending the outcome of those appeals, in April 2011, Congress passed the law ordering reissuance of the 2009 Rule.  Several environmental groups subsequently sued the Service  alleging that the law violated the constitutional separation of powers by directing the outcome of the appeals without amending the underlying substantive law.  While the district court agreed that Section 1713 is unconstitutional and violates the separation of powers doctrine, it entered summary judgment in favor of the Service because it was bound by precedent that constrained its ability to rule for the environmental groups.  The environmental groups then appealed the district court’s decision to the Ninth Circuit. 

While the Ninth Circuit denied the emergency motion for preliminary injunction for an injunctive relief prior to oral argument, the Ninth Circuit will consider the motion for injunction pending outcome of the appeal at oral argument on November 8, 2011.