|Wolf Comments: My Official Public Comments on "RIN number 1018-AU53" Canadian Wolf Delisting and Designating the Northern Rocky Mountain Population of Wolf as a Distinct Population Segment (DPS)
by Julie Kay Smithson
Property rights and resource provider researcher
Member, Friends of the Northern Yellowstone Elk Herd (FONYEH), Inc.
This entire email, including headers, footers, address list, etc., shall be construed and accepted as my Official Public Comments on "RIN number 1018-AU53" Canadian Wolf Delisting and Designating the Northern Rocky Mountain Population of Wolf as a Distinct Population Segment (DPS)
Subject: "RIN number 1018-AU53" http://www.epa.gov/fedrgstr/EPA-SPECIES/2006/February/Day-08/e1102.htm (Federal Register, dated February 8, 2006, Volume 71, Number 26, pages 6,634-6,660)
April 5, 2006
From: email@example.com (Julie Kay Smithson)
My Official Public Comments regarding Canadian Wolf Delisting and Designating the Northern Rocky Mountain (NRM) Population of Wolf as a Distinct Population Segment (DPS)
A hard copy of my Official Public Comments is being mailed on April 5, 2006, to the above address in Helena, Montana, as well as to Friends of the Northern Yellowstone Elk Herd (FOTNYEH) in Pray, Montana, and to the Budd-Falen law offices in Cheyenne, Wyoming.
I have been opposed to the initial "introduction" of Canadian Wolves into Montana (and every other location) from the beginning.
Every legal case and website address/URL reference that is included in my Official Public Comments is included by reference: each and every word.
I hereby, by virtue of my thoroughly researched and documented comments, demand the immediate removal from any "protections" afforded all wolves by the federal government, understanding that such "protections" are really not "protections" at all, but are, rather, a full-scale frontal attack on property rights and resource providers in Montana (and elsewhere).
Were any private citizen -- one who not in cahoots with federal agencies and their partners to sic (Merriam-Webster definition of sic: To incite or urge to an attack, pursuit or harassment.), by whatever illegal, immoral and unconstitutional grounds, wolves and other large predators upon the good people of Montana -- to attempt such deliberate carnage of a sovereign state’s economic health as well as the health and well being of its human, domestic and wild population, that private citizen would be cooling his heels in prison for several lifetimes.
Because the “lead agency” is federal, the crime -- illegally releasing large predators upon a state and its citizens -- is in no way diminished. It is, rather, enhanced, for those perpetrating it upon the public, livestock, pets and ungulate wildlife, know better. With malice aforethought is a well-known phrase that accurately describes this illegal action.
I vehemently oppose any Distinct Population Segment (DPS) designation for all the following reasons:
Wolves are not endangered. Any and all federal "protection" of wolves (and other large carnivores) was, with malice aforethought, criminally asserted in the first place. http://mountain-prairie.fws.gov/pressrel/05-78.htm Wolves have never been threatened with extinction. There are tens of thousands of wolves thriving throughout the Northern Hemisphere, in Canada, Alaska, Scandinavia, Russia, Mongolia, China, Korea, etc. During this time, no "protections" have been extended to the people living in these places -- including, of course, Montana -- and being deliberately placed directly in Harm's Way by these actions. Any use of the word "protection" in any of its forms of usage, is not only a ruse, but also a deliberate use of Language Deception and is a means to an end that is actually to Control All Resources. Right now, in April, wolves are beginning to den, and that means even more innocent predators are being created, to prey on innocent victims – and all at the behest of those two-legged “authorities” that claim legal right to set up this Coliseum with Romans and gladiators in a twenty-first century arena worldwide.
Just as Finnish people and their livestock are facing inordinate and artificially high numbers of wolves, so are people, livestock, pets and ungulates in America.
Just as children in India are considered a food source for wolves, so, too, are children worldwide being put directly in Harm’s way by adult humans that know only too well what they do -- but believe they are immune to accountability and punishment for such crimes.
2. Congress has no constitutional authority -- and should not have such authority -- to impose wolves on Montana (or anywhere else in the United States of America and on the planet) via the Endangered Species Act (ESA) and the Department of the Interior ("Interior" or "DOI") through the United States Fish and Wildlife Service (USFWS) or any other of its agencies. Congress has only those specific powers enumerated in the United States Constitution http://www.law.cornell.edu/constitution/constitution.overview.html
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 no commercial nexus of commerce in wild wolves to justify adding wolves in Montana (or anywhere else) based upon Commerce Clause authority. You are directed to see U.S. v. Stewart (9th Circuit, Kozinski opinion) http://www.ca9.uscourts.gov/coa/newopinions.nsf/90B5FFB18A092A6F88256DDD000000FE /$file/0210318.pdf?openelement and U.S. v. Lopez (SCOTUS - The Supreme Court of the United States) http://supct.law.cornell.edu/supct/html/93-1260.ZS.html
3. Wolves are having a fatally negative financial impact upon the people of Montana, amounting to a death tax on Montana for a criminal federal purpose: the Control of All the Resources of Montana. SCOTUS held in both New York v. U.S. http://www.law.cornell.edu/supct/html/91-543.ZS.html and Printz v. U.S. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol= 95-1478 that Congress may not compel the resources of a state -- but that is exactly what is occurring in Montana. Not only are wolves decimating Montana's culture and its hunting and stockgrowing industries, but Montana is also left to pick up the pieces, ordered to "manage" wolves according to a "federally acceptable" plan. No plan exits to federally fund this [federal] program -- and none should, for any such plan requires funding to be removed directly from taxpayer pockets and pocketbooks. I liken this steamroller approach to a city forcing [subjecting] its human residents to stock their property with disease-carrying vermin and then requiring the residents to be "in compliance" with the predictable repairs associated with such.
The following quote does not say, in so many words, that the radio collared, illegally released, Canadian wolf was kicked by the elk it killed (or was part of a pack that did kill the elk), but evidence certainly appears to indicate such. Of course, the elk was “allowed” to defend itself… “On June 18, 2002, wolf number 256 (a collared female), was found dead inside Glacier National Park, near an elk kill site. The wolf carcass was recovered and the subsequent necropsy revealed the wolf died as a result of a blow to its head. There was no indication or evidence to suggest illegal activity.” Source: http://22.214.171.124/search?q=cache:9ykCN_QNUKwJ:www.yellowstonenationalpark.com /wolves.htm+%40fws.gov+406+Montana+wolves+-ed_bangs&hl=en&gl=us&ct=c lnk&cd=8 Current “federal protection” of wolves -- Canadian wolves that have been brought into Montana and released illegally – does not “allow” the people of Montana to do much more that “comment” on such illegal and life-threatening actions, without threat of illegally imposed fines and jail time. Using the Endangered Species Act (ESA) for such a decimating purpose, in Montana (and elsewhere), is almost beyond belief, as benevolent-turned-malevolent government runs amok.
USFWS continues to refuse to clarify whether the taking of a wolf is a Class II misdemeanor or a felony, feeling that it has some kind of “Wizard of Oz” impunity.
The emperor, in fact, has no clothes.
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. Congress has no authority to impose wolves upon the State and people of Montana (or anywhere else). Therefore, precedent 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. http://data.opi.state.mt.us/bills/2005/BillPDF/HJ0029.pdf requiring the Montana Department of Fish, Wildlife and Parks (MDFWP) http://fwp.mt.gov/default.html to manage large predators (specifically including wolves) to protect hunting opportunities, livestock, pets, and people using the Montana outdoors. MDFWP claims that they cannot implement 87-1-217, M.C.A. as long as wolves are under federal protection. I believe the USFWS would claim that Montana could not implement 87-1-217, M.C.A. -- i.e., wolves -- as long as wolves are federally protected. I believe both interpretations are wrong, and that Montana laws must take precedence, for reasons previously stated. See HJ 29 in its full text: http://data.opi.state.mt.us/legbills/2005/BillHtml/HJ0029.htm
6. Terms of delisting established. In 2003, the Montana Legislature passed House Joint Resolution 32 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, making ongoing federal "protection" of wolves in Montana a violation of established Montana public policy.
7. Cooperative agreement invalid. On July 5, 2005, the USFWS and MDFWP entered into a "Cooperative Agreement" about the joint management of wolves in Montana. This management agreement was entered into without authority by MDFWP, and perhaps even without authority by USFWS.
This Agreement is in conflict with both 87-1-217, Montana Codes Annotated http://data.opi.state.mt.us/bills/mca_toc/index.htm and HJ 32. It is also in conflict with the intent of SCOTUS in Printz v. US http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol= 95-1478 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 MDFWP.
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 http://leg.state.mt.us/css/mtcode_const/const.asp to secure for themselves -- and to prevent government interference with -- the right to harvest wild fish and game animals (Article IX, Section 7, Montana Constitution). It is axiomatic and a principle of jurisprudence that a grant includes the essentials. (1-3-213, Montana Constitutional Amendment: "Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use.") It would be of no avail for the people 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 must use to print 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 in absentia, having been consumed by illegally loosed Canadian wolves. Nowhere in the Montana Constitution is the right extended to wolves to hunt or consume huntable game. In fact, wolves are not mentioned at all in the Montana Constitution. In Baldwin v. Montana http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/baldwin.html SCOTUS 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. SCOTUS established in Baldwin v. Montana http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/baldwin.html 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, Montana Compact) http://www.umt.edu/Law/library/1889%20Montana%20Constitution.pdf 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, which is a little-known but important piece of legislation also called Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Public Law 106-554): http://www.nrc.gov/public-involve/info-quality/pl106-554.pdf and http://www.gsa.gov/Portal/gsa/ep/contentView.do?pageTypeId=8199&channelId=-1 3830&P=IPC&contentId=12290&contentType=GSA_BASIC
12. The Ninth and Tenth Amendments.
The Ninth Amendment: http://caselaw.lp.findlaw.com/data/constitution/amendment09/
The Tenth Amendment: http://caselaw.lp.findlaw.com/data/constitution/amendment10/
There is nothing whatsoever in the U.S. Constitution that can be interpreted, consistent with the times and culture of the adopters, as allowing the federal government to impose wolves upon the states over the objections of the states. There are two provisions in the U.S. Constitution that specifically 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 a clear violation of both the Ninth and Tenth Amendments.
13. Wolf introduction illegally funded. Turning Canadian wolves into Yellowstone National Park and Montana was a bold -- and totally illegal -- act. Pittman-Robertson funds were illegally (and knowingly) used for that purpose. Canadian wolves in Montana are descendents of wolves captured and raised illegally loosed in Montana using money stolen expressly for that illegal purpose.
14. Canadian wolves have been illegally bred and released in the United States. Canadian gray wolves are a subspecies that have never been in Montana and do not belong in Montana now (or anywhere else in the United States). Canadian wolves are significantly larger than wolves that were formerly in Montana. These Canadian wolves are often hand-raised -- whether in Canada, the United States or wherever -- to be even bigger than Canadian wolves born and raised in the wild, and have been put in Montana deliberately and illegally. The people that loosed these wolves upon the people, livestock, pets and wildlife of Montana must be held criminally liable -- that means immediate prosecution for putting the lives of Montanans in deliberate and very real jeopardy – not only from injury or death, but also from disease, as large predators are also disease vectors. My suggestions for punishment: a year of guarding America’s sovereign borders, or perhaps a tour or two in Iraq, or some other life-changing experience.
15. Habitat Conservation Plans (HCPs), Conservation Easements (CEs), Distinct Population Segments (DPSs), etc., are hoaxes. They a rely on a continuing stream of Language Deception – and a continuing stream of taxpayer dollars offered as a monetary carrot. Rather than expound further, here are the various and sundry, “official” definitions of Habitat Conservation Plans (HCPs), Conservation Easements (CEs), and Distinct Population Segments (DPSs):
Habitat Conservation Plan (HCP) – A plan that outlines ways of maintaining, enhancing, and protecting a given habitat type needed to protect species; usually includes measures to minimize impacts, and may include provisions for permanently protecting land, restoring habitat, and relocating plants or animals to another area. Required before an incidental take permit may be issued. (DOI/USFWS) – This glossary is intended to give the meaning of key words, but does not necessarily provide a legal definition or thorough description. Legal definitions can be found in the Endangered Species Act, and throughout its implementing regulations in the Code of Federal Regulations (CFR). Title 50 of the CFR is called Wildlife and Fisheries and its shorthand designation is written as: 50 CFR. Title 50 contains the regulations governing all programs of the U.S. Fish & Wildlife Service and NOAA Fisheries. The 50 CFR is subdivided into nearly 700 parts, with each part covering a different general topic. For example, part 17 covers endangered and threatened wildlife and plants. Its shorthand designation is written as: 50 CFR 17. Part 17 is further subdivided into sections, with each section covering a different specific topic. For example, section 3 contains definitions and its shorthand designation is written as: 50 CFR 17.3. This is just one of many sections in the 50 CFR that contain definitions. The list of endangered and threatened wildlife is found at 50 CFR 17.11. The corresponding list of endangered and threatened plants is found at 50 CFR 17.12. Revised, April 2005 http://www.fws.gov/endangered/glossary.pdf 2. A plan [that] outlines ways of maintaining, enhancing, and protecting a given habitat type needed to protect species. The plan usually includes measures to minimize impacts, and might include provisions for permanently protecting land, restoring habitat, and relocating plants or animals to another area. A HCP is required before an incidental take permit may be issued. – Glossary for Endangered Species Act terms. (DOI/USFWS) http://www.fws.gov/midwest/Endangered/glossary/ and http://endangered.fws.gov/hcp/index.html
Conservation easement (CE) – Instrument of property ownership in which specified rights to property development are separated from landownership, usually to preclude any substantial change in the current use of the land. A conservation easement allows a landowner to continue to own and use his or her land and to sell it. However, the allowable uses of the land are permanently limited in order to protect its conservation values. – (DOI/NPS) Majority of definitions adapted from “A Park and Recreation Professionals' Glossary,” California Department of Parks and Recreation Planning Division, January 1, 2003; other definitions from California State Law, CEQ (NEPA), and Santa Barbara County. Draft Gaviota Coast Feasibility Study & Environmental Assessment http://www.nps.gov/pwro/gaviota/gaviota_draft_report_232-234.pdf
Distinct population segment (DPS) – A subdivision of a vertebrate species that is treated as a species for purposes of listing under the Endangered Species Act. To be so recognized, a potential distinct population segment must satisfy standards specified in a FWS or NOAA Fisheries policy statement (See the February 7, 1996, Federal Register, pages 4722-4725). The standards require it to be separable from the remainder of and significant to the species to which it belongs. (DOI/USFWS) – This glossary is intended to give the meaning of key words, but does not necessarily provide a legal definition or thorough description. Legal definitions can be found in the Endangered Species Act, and throughout its implementing regulations in the Code of Federal Regulations (CFR). Title 50 of the CFR is called Wildlife and Fisheries and its shorthand designation is written as: 50 CFR. Title 50 contains the regulations governing all programs of the U.S. Fish & Wildlife Service and NOAA Fisheries. The 50 CFR is subdivided into nearly 700 parts, with each part covering a different general topic. For example, part 17 covers endangered and threatened wildlife and plants. Its shorthand designation is written as: 50 CFR 17. Part 17 is further subdivided into sections, with each section covering a different specific topic. For example, section 3 contains definitions and its shorthand designation is written as: 50 CFR 17.3. This is just one of many sections in the 50 CFR that contain definitions. The list of endangered and threatened wildlife is found at 50 CFR 17.11. The corresponding list of endangered and threatened plants is found at 50 CFR 17.12. Revised April 2005 http://www.fws.gov/endangered/glossary.pdf 2. If it satisfies the criteria specified in the February 7, 1996, Federal Register, pages 4722-4725, a portion of a vertebrate (i.e., animals with a backbone) species or subspecies can be listed. The criteria require it to be readily separable from the rest of its species and to be biologically and ecologically significant. Such a portion of a species or subspecies is called a distinct population segment. – Glossary for Endangered Species Act terms. (DOI/USFWS) – Glossary for Endangered Species Act terms. Department of Interior, U.S. Fish and Wildlife Service (DOI/USFWS) http://www.fws.gov/midwest/Endangered/glossary/ Also: http://www.fws.gov/midwest/Endangered/glossary/
The above three definitions, and thousands more, clearly show the premeditated intent to use such definitions -- like large predator introduction -- as surrogate real estate agents with strong-arm tactics.
Distinct Population Segment Designation
The proposal to designate wolves in the northern Rockies as a Distinct Population Segment (DPS) is an administrative ploy to lump Montana with Idaho, Wyoming, Washington, Oregon, Utah, and likely Colorado into a multi-state, “one size fits all” wolf “management strategy” that makes Montana dependent upon compliance by all other states and erases its statehood and state rights in one fell swoop.
This action violates Montana laws.
It violates Montana sovereignty (Article II, Section 2, of the Montana Constitution) for many reasons, including, but not limited, to: it violates the contractual relationship between Montana and other states (the Compact) by which Montana accepted statehood.
The above are all legitimate, honest reasons explaining -- like you don't already know -- why these were and are consummate wrongs: to place wolves (or any other large predator) in Montana under federal "protection" and to "reintroduce" wolves into Montana (or any other state). Such actions are nothing more than the theft of private property rights. Such actions spit in the eyes of every framer of the founding documents of this United States of America, as such actions grind the Fifth Amendment’s takings clause http://caselaw.lp.findlaw.com/data/constitution/amendment05/ -- “…nor shall private property be taken for public use, without just compensation” into the dirt beneath the heels of the perpetrators.
It is, therefore, imperative to immediately remove all federal "protection" and control now, and rid Montana of those federal employees and their partners that have brought this horrendous nightmare to the good, generational resource stewards -- the property owners and responsible resource providers of the Big Sky state. As an aside, any evidence of another Hydra head sprouting, in the form of other large predators being offered at the altar of “federal funding” must be immediately dealt with by the people and elected officials of Montana (and everywhere else). This is domestic terrorism on a scale which is, in the very words of the agencies implementing it, “landscape,” “ecosystem,” “watershed,” or whichever other term means EVERYWHERE and EVERYTHING. In an earlier time these employees and their partners would have been "run out of town on a rail."
Reminiscing, I find myself longing for the return of the rail for this reason if no other!
Julie Kay Smithson
Property rights and resource provider researcher
Member, Friends of the Northern Yellowstone Elk Herd (FONYEH), Inc.
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Addressed primarily to:
U.S. Fish and Wildlife Service
"Western Gray Wolf Recovery Coordinator" [Edward E. Bangs]
585 Shepard Way
Helena, Montana 59601
406-449-5225 Ext. 204