3 Apr 2011, 9:27am
Endangered Specious Wildlife Agencies Wolves
by admin

Idaho Wolf Disaster Bill To Be Considered

Next week the Idaho Legislature’s Senate Resources Committee will consider a “wolf disaster bill”. The bill declares an emergency and authorizes the Governor to direct state agencies and sheriffs to control gray wolves.

The full text of the draft Bill is [here]. It reads in part:


(1) Section 1, Article I, of the constitution of the state of Idaho provides: “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.” It is the duty and right of the legislature and the governor to protect the state, its citizens and property.

Section 36-103(a), Idaho Code, provides: “All wildlife, including all wild animals, wild birds, and fish, within the state of Idaho, is hereby declared to be the property of the state of Idaho.” The state of Idaho therefore has the responsibility to manage the big game animals of the state.

(2) The Idaho legislature finds and declares that the state’s citizens, businesses, hunting, tourism and agricultural industries, private property and wildlife, are immediately and continuously threatened and harmed by the sustained presence and growing population of Canadian gray wolves in the state of Idaho. The Idaho legislature, therefore, finds the population of gray wolves in Idaho, having been introduced into the state in 1995, over the united objection of the Idaho congressional delegation, Idaho legislature, Idaho governor, Idaho counties and numerous Idaho agricultural groups who were gravely concerned with the negative effects this action would impose on Idaho and Idahoans, is now many times exceeding the target number originally set by the federal government and the number set in Idaho’s federally-approved 2002 wolf management plan. The U.S. Fish and Wildlife Service (USFWS) has delisted the gray wolf in Idaho in 2008 and 2009 returning management to the state, only to be sued both times by environmental groups forcing the wolf to be relisted as endangered.

As a result of all the above, the legislature finds that public safety has been compromised, economic activity has been disrupted and private and public property continue to be imperiled. The uncontrolled proliferation of imported wolves on private land has produced a clear and present danger to humans, their pets and livestock, and has altered and hindered historical uses of private and public land, dramatically inhibiting previously safe activities such as walking, picnicking, biking, berry picking, hunting and fishing. The continued uncontrolled presence of gray wolves represents an unfunded mandate, a federal commandeering of both state and private citizen resources and a government taking that makes private property unusable for the quiet enjoyment of property owners.

An emergency existing therefore, it is the intent of the legislature to reg1ulate the presence Canadian gray wolves in Idaho in order to safeguard the public, wildlife, economy and private property against additional devastation to Idaho’s social culture, economy and natural resources, and to preserve the ability to benefit from private and public property within the state and experience the quiet enjoyment of such property. …

The draft Bill was carefully written to avoid challenges under the Supremacy Clause of the U.S. Constitution. Idaho attorney John L. Runft of Runft & Steele Law Offices in Boise writes:

In drafting this act, one objective was to avoid the claim that this bill was attempting to “nullify” a federal act (the ESA), thereby violating the Supremacy Clause (Art VI of the U .S. Constitution) aka “federal preemption”. The recitations and findings of fact were to demonstrate that this matter had transcended from a federal matter under the ESA and had become an emergency affecting the welfare of the citizens of the State of Idaho.

The express objectives of the wolf “reintroduction” under the ESA, enacted pursuant to the Commerce Clause (Art I, 8 of the U .S. Constitution), have long since been achieved. When mismanagement of a federal program creates a disaster emergency that remains unconstrained, the Commerce Clause and Supremacy Clause do not work to shelter the results of such federal mismanagement from action by a state to protect the welfare of its citizens. Article 1 Section 1 of the Idaho Constitution provides that the State of Idaho is “mandated” (pursuant to its “police powers”) to protect the rights of its citizens, among which are “enjoying and defending life and liberty; acquiring possessing and protecting property; pursuing happiness and securing safety.”

The preemption doctrine derives from the Supremacy Clause of the Constitution which states that the “Constitution and the laws of the United States… shall be the supreme law of the land… anything in the constitutions or laws of any State to the contrary notwithstanding.” This means that any federal law-even a regulation of a federal agency-trumps any conflicting state law. Federal “occupation of the field” occurs, according to the U.S. Supreme Court in Pennsylvania v Nelson, 350 U.S. 497 (1956), when there is “no room” left for state regulation. Courts are to look to the pervasiveness of the federal scheme of regulation, the federal interest at stake, and the danger of frustration of federal goals in making the determination as to whether a challenged state law can stand.

The police powers of a state (those inherent powers exercised by a state for the order and welfare of its citizens) are not automatically superseded by acts of Congress. From the standpoint of federal constitutional law, states have general police powers except where restricted by the federal Constitution. Because the Congress has limited powers granted in the Constitution, the Federal government does not have a general police power, as the states do. The exceptions are laws regarding Federal property and the military. On the other hand, Congress was granted by the New Deal Court a broad quasi-police authority from its power to regulate interstate commerce and raise and spend revenue.

Nevertheless, as stated by Justice Stevens in Levine v Wyeth, 555 U.S. ___ (2009), “We start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” The U.S. Supreme Court ruled, 6 to 3, in Levine v Wyeth, 555 U.S. ___ (2009) that state juries may award damages for harm from unsafe drugs even though their manufacturers had satisfied federal regulators. (See also, Silkwood v Kerr-McGee, 464 U.S. 238, (1984) In Gonzales v Oregon, 546 U.S. 243 (2006) the Court considered whether Congress, in enacting the Controlled Substances Act, intended to pre-empt state laws such as that of Oregon’s which authorized physicians (under strictly controlled circumstances) to prescribe lethal doses of controlled drugs for terminally ill patients. The Court, ruling 5 to 4, held that the Act did not authorize pre-emption of Oregon’s Death with Dignity Act.

This proposed act does not intrude into federal management of wolves. In fact the act abjures management, and lists wolves as a “predator.” The proposed act focuses on the results of federal mismanagement. he measures taken by the state in this act are analogous to measures that might be taken to control a disease that was negligently released from federal experiments in a federal laboratory that was under federal control and management; and especially, as in this case, where the federal government has failed to control the outbreak.

The federal government has already repeatedly acknowledged that the objectives of the wolf “reintroduction” has been met and greatly exceeded. This proposed legislation is not in conflict with those objectives.

Inquiry under the Supremacy Clause begins with a presumption that the state law is valid. (Pacific Gas and Electric Co. v State Energy Resources Conservation and Development Commission, 461 U.S. 190, (1983)) The Pacific Gas case stands for the proposition that a state act will not be preempted if the federal and state interests and objectives are distinct. Here, the interests are clearly distinct and different. The federal law’s objectives are preservation of species (an objective achieved in this instance) and the state’s objectives are the protection of the rights and welfare of its citizens from the continuing federal mismanagement of the federal program. Moreover, the federal law and regulations relating to wolves contain no “police power” provisions for the protection of the state’s citizens or for the reimbursement to said citizens for property loss arising from said federal program. Therefore there is a personable presumption that there exists no conflict and no preemption.

Gray wolves are not endangered; they are rife. The USFWS recognizes that fact and has twice attempted to remove wolves from the endangered species list (under two different administrations). Federal judges, however, at the behest of eco-litigious lobby groups, have refused to allow the delisting on specious technical grounds.

Now the Idaho legislature hopes to assert its rights under the US Constitution to protect the health and safety of Idahoans. While the blood-thirsty, anti-human eco-lobby may protest, the US Constitution provides for states’ rights.

It is interesting to note that the legal foundation of the ESA rests on the Commerce Clause (Article I, 8 of the U .S. Constitution) which gives the federal government the privilege of regulating “interstate commerce”. Rabid, spree-killing wolves are not “commerce”, although they have crossed state lines in search of prey. The confounding of commerce with vermin movement is one of the ridiculous and hurtful abuses of language that our judges and legislators are famous for. Orwell called it “newspeak” — language that deliberately disguises, distorts, or reverses the meaning of words in order to violate and usurp fundamental human rights. The lying liars that lie lie for a reason: to do grievous harm to their fellow men.

7 Apr 2011, 7:34pm
by YPmule

The bill passed and waiting for Gov. Otter to sign.



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