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McConnell gaslit the nation, but he didn’t steal any seats. Nothing he did was against the rules, which was why Democrats found themselves powerless to stop him. Liberals, in their anger, have too often ignored the logic of McConnell’s actions. He understood what too many have ignored: America’s age of norms is over. This is the age of power. And there’s a reason for that.
Let’s start here: The Supreme Court has changed. In the ’50s and ’60s, you would have had a hard time inferring a justice’s political background from his votes, as this analysis by Lee Epstein and Eric Posner shows. In the ’90s, Byron White, a Democratic appointee, had a more conservative voting record than all but two of the Republican-appointed justices — Antonin Scalia and William Rehnquist. John Paul Stevens, an anchor of the court’s liberal wing until his retirement in 2010, was appointed by Gerald Ford, a Republican.
But this record of independence was understood, by the parties that produced it, as a record of failure. The vetting process by which nominees are chosen was revamped to all but guarantee ideological predictability. In recent years, “justices have hardly ever voted against the ideology of the president who appointed them,” Epstein and Posner find.
I am, to put it mildly, obsessed with the way ideological polarization is colliding with America’s peculiar political institutions. I wrote a whole book about it. Our political system is not designed for political parties this different, and this antagonistic. It wasn’t designed for political parties at all. The three branches of our system were intended to check each other through competition. Instead, parties compete and cooperate across branches, and power in one can be used to build power in another — as McConnell well understood.
The Supreme Court is a strange institution — the final word on the law, but with no way to enforce its decisions; clearly political, but supposed to stand above politics; composed of nine bickering individuals, but posing as the impartial voice of the Constitution — and we have papered over its peculiarities with traditions of continuity and restraint. We ask senators to judge nominees by their qualifications, not their ideas. We ask justices to uphold past decisions they believe are wrong, even immoral. At least, we did. In recent years, the political importance of the court has overwhelmed the norms that (somewhat) insulated it from politics.
As I wrote in my book, “There is perhaps no single vote members of the U.S. Senate take with as much long-term ideological importance than that of a lifetime appointment to the Supreme Court, and asking them to keep that vote, and that vote alone, separate from the ideological promises they make to their voters, and to themselves, is bizarre.” The old norm worked when party conflict was mild enough to create a court that felt, and perhaps was, largely nonpartisan. But those days are long gone.
Making matters worse is that the Supreme Court has gone from being undemocratic to being anti-democratic. Lifetime appointments are iffy under the best of circumstances, but the vagaries of retirements and deaths have given Republicans a control that makes a mockery of the public will. Five of the court’s six Republican justices were appointed by presidents who initially took office after losing the popular vote (and, in the case of George W. Bush, after a direct intercession by five of the court’s conservatives in Bush v. Gore). Donald Trump was able to make more appointments in one term than Barack Obama was able to make in two.
You might think that the minoritarian nature of this Supreme Court would produce a restrained majority, one fearful of falling too far afoul of public opinion. It has not. To read the flurry of decisions and concurrences and dissents in Dobbs is to read less about abortion and rights than you might expect. Much of the text is a debate over the legal principle of stare decisis, which directs the court to respect precedent when making decisions.
Stare decisis helps solve a particular problem for the Supreme Court, which must prove itself an institution operating across time, not simply an amalgamation of nine voices at any given moment. When it resists the impulse to overturn past decisions, the court builds in a continuity beyond what the opinions of its members would offer.
Roe was already revisited, in the 1992 Casey decision, and left mostly standing. Under the norms that have governed the court for decades, Roe should have been safe, not because the majority agrees with it today, but because the Supreme Court does not upend settled law based on what the majority believes today.
This is the subject of Chief Justice John Roberts’s disappointed concurrence. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.” The dissent of the liberals thrums with even deeper anger: “Here, more than anywhere, the court needs to apply the law — particularly the law of stare decisis.”
But stare decisis, as the justices know far better than I do, is not a law. And so, in his majority opinion, Samuel Alito brushes it aside. “It is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach,” he wrote. “But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
The argument Alito makes throughout his opinion is simple: The court can err. When it has erred, it must correct itself. Make all the fancy arguments about stare decisis you want, but if a decision is wrong, then it’s wrong, and it must be revisited. To take his perspective for a moment: There is something maddening about being appointed to a seat on the land’s highest court but told to leave standing the decisions you and four of your colleagues consider most noxious.
On some level, he is right. Stare decisis makes little sense. The problem is that, without it, the Supreme Court itself makes even less sense. It is just nine costumed political appointees looking for the votes they need to get the outcomes they want. And the further we travel down that road, the more the mystique that sustains the court dissolves. There is no rule, really, that the Supreme Court must be obeyed as the final word in constitutional interpretation — that, too, is a norm, and one that the court has no power to enforce. If all the Supreme Court is left with are the rules, soon enough there will be no Supreme Court to speak of.
So what would it look like to rebuild the rules and norms of the Supreme Court so they made sense in a polarized era — so that it could be an institution that moderated our political conflicts, rather than worsening them? It got little notice, but there was, recently, a thorough and important effort to think through that question. It will be the subject of next week’s column.
A man passes by a destroyed drama theater in Mariupol, April 3, 2022. (photo: Ilya Pitalev/AP)
ALSO SEE: Amnesty International Releases New Evidence on
Russia's Attack on Mariupol Drama Theater
The strike killed at least a dozen people. Russia blocked Amnesty's Crisis Response Team from entering Mariupol so researchers interviewed survivors in other parts of Ukraine, examined satellite data and hired a physicist to model the detonation.
In the report 'Children': The Attack on the Donetsk Regional Academic Drama Theatre in Mariupol, Ukraine, the team concluded that the attack "was almost certainly carried out by Russian fighter aircraft, which dropped two 500kg bombs that struck close to each other and detonated simultaneously."
Those sheltering inside the theater had written the Russian word for children outside the building to make clear that civilians were inside. The Russians denied responsibility and pointed the finger at Ukraine.
"The Russian Ministry of Defense and official Russian media claimed it was Ukraine's Azov Regiment that blew up the theater as a false flag operation, an act of sabotage to blame Russia," Joanne Mariner, Amnesty's director of crisis response told NPR. "We looked very carefully into that and also the possibility that it was a Ukrainian airstrike. Neither are plausible based on credible evidence. There was also a claim that the theater was being used for military purposes, but none of the witnesses we spoke to saw any kind of military activity, except for the occasional soldier bringing food to family members."
She said the team also investigated whether the strike might have been accidental. But it was a clear day, and the word for children written on the forecourt would have been visible from a plane.
"Even the most superficial monitoring would have led Russian military decision-makers to recognize that this was a civilian object, with active civilian activity inside," Mariner says. "
She says she hopes the investigation will provide a road map for others who want to research war crimes in sites they can't access.
"With the technological possibilities we have now ... it's possible to reconstruct the strike and reach firm conclusions," she says. "Russian authorities tried to muddy the waters by claiming that this was a Ukrainian attack. And I think we've clearly disproved that."
Amnesty International is asking the International Criminal Court to investigate the attack as a war crime. "All those causing such death and destruction must be held accountable," Agnes Callamard, Amnesty's secretary-general, said in a statement.
Court sides with Republican states as ruling represents landmark moment in rightwing effort to dismantle 'regulatory state.' (photo: Getty)
Court sides with Republican states as ruling represents landmark moment in rightwing effort to dismantle ‘regulatory state’
In a 6-3 decision that will seriously hinder America’s ability to stave off disastrous global heating, the supreme court, which became dominated by rightwing justices under the Trump administration, has opted to support a case brought by West Virginia that demands the US Environmental Protection Agency (EPA) be limited in how it regulates planet-heating gases from the energy sector.
The case, which was backed by a host of other Republican-led states including Texas and Kentucky, was highly unusual in that it was based upon the Clean Power Plan, an Obama-era strategy to cut emissions from coal-fired power plants that never came into effect. The Biden administration sought to have the case dismissed as baseless given the plan was dropped and has not been resurrected.
Not only was this case about a regulation that does not exist, that never took effect, and which would have imposed obligations on the energy sector that it would have met regardless. It also involves two legal doctrines that are not mentioned in the constitution, and that most scholars agree have no basis in any federal statute.
However, the supreme court has sided with West Virginia, a major coal mining state, which argued that “unelected bureaucrats” at the EPA should not be allowed to reshape its economy by limiting pollution – even though emissions from coal are helping cause worsening flooding, heatwaves and droughts around the world, as well as killing millions of people through toxic air.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day’,” wrote Chief Justice John Roberts in the opinion. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Roberts was joined by the conservative justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three liberal justices, Sonia Sotomayor, Elena Kagan and Stephen Breyer dissented. It is the most important climate change case to come before the supreme court in more than a decade.
But the ruling could also have sweeping consequences for the federal government’s ability to set standards and regulate in other areas, such as clean air and water, consumer protections, banking, workplace safety and public health. It may prove a landmark moment in conservative ambitions to dismantle the “regulatory state”, stripping away protections from Americans across a wide range of areas.
It could fundamentally change what the federal government is and what it does. And, as justice Elena Kagan pointed out in her dissent, it could leave technical decisions to a political body that may not understand them.
“First, members of Congress often don’t know enough – and know they don’t know enough – to regulate sensibly on an issue. Of course, members can and do provide overall direction. But then they rely, as all of us rely in our daily lives, on people with greater expertise and experience. Those people are found in agencies,” she wrote.
Several conservatives on the court have criticized what they see as the unchecked power of federal agencies, concerns evident in orders throwing out two Biden policies aimed at reducing the spread of Covid-19.
Last summer, the six-to-three conservative majority ended a pandemic-related pause on evictions over unpaid rent. In January, the same six justices blocked a requirement that workers at large employers be vaccinated or test regularly for the coronavirus and wear a mask on the job.
The Biden administration was supported in the EPA court case by New York and more than a dozen other Democratic-led states, along with prominent businesses such as Apple, Amazon and Google that have called for a swift transition to renewable energy.
The administration has vowed to cut US emissions in half by the end of this decade but has floundered in its attempts to legislate this outcome, with a sweeping climate bill sunk by the opposition of Republican senators and Joe Manchin, the centrist Democratic senator from West Virginia.
The federal government also had the power of administrative regulations in order to force reductions in emissions but the supreme court ruling will now imperil this ability.
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Downloads of apps that track menstrual cycles, like Flo's, have risen rapidly since the Supreme Court overturned Roe v. Wade. (photo: Cayce Clifford/The New York Times)
ALSO SEE: You Scheduled an Abortion. Planned Parenthood's Website
Could Tell Facebook.
Tweets telling women to do that went viral after Roe v. Wade was overturned, but experts say other digital data are more likely to reveal an illegal abortion.
Seven women were arrested, including two who had the names and addresses of patients on index cards in their purses. According to a history written by a member of the collective, “The Story of Jane,” the women destroyed the cards in the police van on the way to the station, tearing them into small pieces and eating some of them. They didn’t know what the police might do with the information, so they got rid of it.
Fifty years later, the Supreme Court has overturned the Roe decision. Abortions will be banned or seriously limited in much of the country. But now, thanks to the digital trails left behind in the modern technological age, it will be far harder to hide incriminating data about a decision to end a pregnancy.
When a draft of the court’s decision was first leaked in May, and then when the ruling became official last week, people focused on these digital trails, specifically the information that millions of women share about their menstrual cycles on period tracker apps. The knee-jerk advice was simple and direct: Delete them all. Immediately.
“Delete those fertility apps now,” tweeted Gina Neff, a sociologist and director of the Minderoo Center for Technology and Democracy at the University of Cambridge. In an interview over Zoom, Dr. Neff said the apps contained “powerful information about reproductive choices that’s now a threat.”
These apps allow users to record the dates of their menstrual cycles and get predictions about when they are ovulating and most fertile. The apps can also serve as digital diaries for sexual activity, birth control methods and conception attempts. Some women use the apps when they are trying to get pregnant, others to avoid it and many just to know when their next period is coming.
The exhortations to get rid of them seem to have had the opposite effect. According to Data.ai, which monitors app store activity, the downloads of period tracking apps doubled in the days since Roe was overturned, compared with average weekly downloads in the three previous months.
The biggest gainers were Clue and a little-known astronomy-based period tracker, Stardust, both of which made public commitments to data protection after the Supreme Court’s decision. A spokeswoman for Clue said the company, which is based in Europe, would not comply with requests for users’ health information from U.S. law enforcement.
While period trackers seem like an obvious source of information about reproductive health decisions, experts say other digital information is more likely to put women at risk. Cynthia Conti-Cook, a civil rights lawyer and technology fellow at the Ford Foundation, researched prosecutions of pregnant people accused of feticide or endangering their fetuses, cataloging the digital evidence used against them in an academic paper she published in 2020.
“We should start with the types of data that have already been used to criminalize people,” said Ms. Conti-Cook, who previously worked in a public defenders’ office in New York. “The text to your sister that says, ‘Expletive, I’m pregnant.’ The search history for abortion pills or the visitation of websites that have information about abortion.”
One of the cases Ms. Conti-Cook highlighted was that of Latice Fisher, a Mississippi woman who was charged with second-degree murder after a stillbirth at home in 2017. According to a local report, investigators downloaded the contents of her phone, including her internet search history, and she “admitted to conducting internet searches, including how to induce a miscarriage” and how to buy pregnancy-terminating medicine like mifepristone and misoprostol online. After significant public attention, the case against Ms. Fisher was dropped.
In another case, in Indiana, text messages to a friend about taking abortion pills late in a pregnancy were used to convict Purvi Patel, who successfully appealed and reduced a 20-year sentence for feticide and neglect of a dependent.
“Those text messages, those websites visited, those Google searches are the exact type of intent evidence that prosecutors want to fill their bag of evidence,” Ms. Conti-Cook said.
Investigators could also potentially use smartphone location data if states pass laws forbidding women to travel to areas where abortion is legal. Information about people’s movements, collected via apps on their phones, is regularly sold by data brokers.
When The New York Times investigated the supposedly anonymized data on the market in 2018, it was able to identify a woman who had spent an hour at a Planned Parenthood in Newark. In May, a journalist at Vice was able to buy information from a data broker about phones that had been carried to Planned Parenthoods over the course of a week for just $160. (After Vice’s report, the data broker said it planned to cease selling data about visits to the health provider.)
In the past, anti-abortion activists have “geofenced” Planned Parenthoods, creating a digital border around them and targeting phones that enter the area with ads directing owners to a website meant to dissuade women from ending their pregnancies.
There are similar attempts to capture the attention of people who go online to seek help with abortions. “Pregnancy crisis centers” aim to be at the top of Google search results when people seek information about how to end a pregnancy. When someone clicks through to such a website, it will sometimes try to collect information about the person.
Given the many ways in which people’s movements, communications and internet searches are digitally tracked, the bigger question may be just how zealous law enforcement will be in states with abortion bans. Those advising against the use of period trackers appear to fear the worst: dragnet-style searches for anyone who was pregnant and then ceased to be.
“It’s hard to say what will happen where and how and when, but the possibilities are pretty perilous,” Ms. Conti-Cook said. “It can be very easy to be overwhelmed by all the possibilities, which is why I try to emphasize focusing on what we have seen used against people.”
She added: “Google searches, websites visited, email receipts. That’s what we’ve seen.”
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Abortion rights demonstrators block an intersection during a protest near the Supreme Court in Washington, D.C., June 30, 2022. (photo: Al Drago/Bloomberg)
Worried the Democratic establishment is failing heed the urgency of the moment, a once-pacified left faces down arrests to send a message.
Demonstrators minced no words when it came to the five justices who had voted to overturn Roe v. Wade and issued sharp criticisms of a Republican Party that spent years securing a majority on the court extreme enough to reverse 50 years of precedent. Yet the anger that got many of the activists out on the street was aimed at the Democratic Party that many of the marchers hold partially responsible.
“The Democrats act as if the worst will never happen. And the worst keeps happening,” said Ana MarÃa Archila, a former candidate for lieutenant governor of New York, in an interview with The Intercept before the march. “They” — Republicans — “are rolling back decades of progress. They are taking away the most basic rights from people. Democrats have to have the courage to match the moment.”
Within a few hours, nearly 200 abortion activists had been arrested and forcibly removed from the crossing at First Street and Constitution Avenue in Washington, D.C. — a busy intersection near the court’s sprawling front steps. While sit-ins are a relatively common occurrence in Washington, organizers hope the size of the demonstration, and the broad coalition of organizations that supported the protest, inaugurates a renewed push for nonviolent civil disobedience in the wake of the Supreme Court’s gutting of abortion rights last week.
The demonstration, which was spearheaded by Center for Popular Democracy, saw a range of organizers, Democratic candidates, elected officials, and movement leaders from across the country assemble at the Lutheran Church of the Reformation on Capitol Street. The expected culmination of the day’s events — arrest at the hands of U.S. Capitol Police — was clear from the start.
The attendance of one organization in particular, Planned Parenthood Action, raised eyebrows. Unlike fellow supporting organizations like the Working Families Party, Planned Parenthood had never engaged in as urgent a form of direct action before Thursday.
The tactics represent a departure from what has defined many left-wing activist groups for most of Biden’s tenure. Despite the president’s sagging approval, many progressive leaders and legislators have chosen to stand by his administration — or at least mute their criticisms — in exchange for increased access and a louder voice in the policy-making process. The administration’s failure to prepare a road map for a post-Roe America, however, appears to have soured that relationship.
Reports early Thursday morning that Biden had reversed course and now supports a filibuster carve out for abortion rights did little to convince attendees.
“They’ve had that draft opinion for how long?” said one protester, who asked that his name not be used, referring to a leaked draft from the court made public in May. “And it still took them a week to say they support a filibuster carveout?”
A number of Democratic candidates who attended the event and faced arrest by Capitol Police shared that sentiment, including Melanie D’Arrigo, a candidate for Congress in New York’s 3rd Congressional District. A spokesperson for the D’Arrigo campaign, David Guirgis, told The Intercept that D’Arrigo’s arrest serves as proof that she was unafraid to push the party to take a firm stand on abortion rights. “We are here because Republicans have attacked Roe for 50 years and Democrats have done nothing,” he said. “[Melanie] is not afraid to stand up to Republicans or Democrats to ensure that basic human rights are protected.”
D’Arrigo was discharged from police custody within a few hours of being detained. Upon release, she issued a statement with a similarly defiant tone. “I was let go after a couple of hours—but for millions of people in states where abortion, a critical healthcare procedure, is now criminalized, their arrests will be far longer and far more severe,” she said. “What the Supreme Court did with their radical, partisan decision in Dobbs v. Jackson … underscores the need to elect better Democrats, not the status quo that got us here.”
One of the last activists to face arrest, legendary movement leader Rev. William J. Barber II of the Poor People’s Campaign put the message activists are hoping to send to elected Democrats in even starker terms. Arrested while addressing the crowd, Barber was being escorted away from the intersection by Capitol Police when he declared: “We will primary everybody.”
Senator Bernie Sanders, a leading progressive voice and former presidential candidate, has been staunchly critical of AIPAC. (photo: France 24)
Several progressive lawmakers have rebuked the pro-Israel group for funnelling millions of dollars into Democratic challengers and Republican candidates
While in previous years AIPAC enjoyed bipartisan support from Democrats and Republicans alike, it has recently begun to sour ties with some members of the Democratic Party after launching a Super PAC, the United Democracy Project (UDP), that has been spending heavily against progressives and has been funded by major Republican mega-donors.
Congressman Mark Pocan, a member of the House Progressive Caucus, warned on Tuesday to "proceed with great caution on AIPAC's endorsements. The candidates should renounce these efforts to be credible".
Senator Bernie Sanders, a leading progressive voice, former presidential candidate, and critic of AIPAC, attacked the group in his latest endorsement for Congressman Andy Levin, who is currently facing a primary challenge from Haley Stevens.
Stevens has received more than $270,000 from pro-Israel groups, according to OpenSecrets.
"The right-wing-funded super PAC run by AIPAC has found its newest progressive target in Congressman Andy Levin," Sanders said in a statement.
"Once again, these extremists are pouring millions of dollars into a congressional race to try to ensure the Democratic Party advances the agenda of powerful corporations and the billionaire class."
AIPAC launched the UDP in December, alongside the AIPAC PAC, giving the group the ability to donate to political campaigns.
Pro-Israel groups have spent millions so far in this year's primary election cycle, and have helped a number of moderate Democrats achieve victory over their progressive opponents who are more critical of Israel.
So far, the UDP has spent almost $12m in seven primary races this year, according to a tally by Haaretz.
This week, Congresswoman Marie Newman, one of the most vocal pro-Palestinian voices in US Congress, lost her primary election race to Sean Casten. Democratic Majority for Israel endorsed Casten, and its Super PAC spent more than $540,000 to support him against Newman.
Meanwhile, AIPAC has also endorsed more than 100 of the 147 Republican lawmakers that voted against certifying President Joe Biden's election victory over Donald Trump.
Middle East Eye reached out to AIPAC and UDP for comment but did not receive a response by the time of publication.
NYC Mayor Bill de Blasio no longer supports AIPAC
Even moderate and pro-Israel Democrats have taken to lambaste AIPAC and the UDP for funding negative campaign ads against their fellow party members.
Former New York City Mayor Bill de Blasio, who in 2014 delivered a private and staunchly pro-Israel speech to the group, said last week that he was no longer going to support AIPAC.
"They have changed in a way that is unacceptable to me because they have attacked people I believe in," said de Blasio, who is now running for an open seat in New York’s redrawn 10th Congressional District.
The former mayor was referencing Nina Turner, a progressive candidate who last year lost a primary campaign against Shontel Brown. The pro-Israel PAC Democratic Majority for Israel and AIPAC's UDP had spent around $1.5m on television ads to support Brown's campaign.
House Speaker Nancy Pelosi has been a longtime attendee of the pro-Israel group's annual conference in Washington and has also supported the same candidates that AIPAC has.
However, after the AIPAC-aligned UDP launched an ad campaign against former congresswoman Donna Edwards in a Maryland primary battle, Pelosi stepped in to defend Edwards.
"Donna fought hard for Prince George’s County - for jobs and investments in her community, to help constituents in need and to deliver results," Pelosi said in a video.
A pack of gray wolves scavenge on the remains of an elk left by hunters during the elk reduction program along the border of Grand Teton National Park. (photo: Syler Peralta-Ramos)
Can state agencies ensure conservation when hunters pay the bills and ranchers determine wildlife policy?
For much of the past 50 years, state views and state politics played no part in conservation conversation about the importance of Yellowstone and its surrounding regions. Under federal conservation mandates, the recovery of the West’s most charismatic animals within the park’s borders flourished.
Yet now that wolves, grizzlies, and elk among others, have rebounded from their 20th century lows, Wyoming hopes to gain exclusive control of wildlife management — for the first time since protections were enacted.
Wyoming, the state in which 97% of Yellowstone lies, is the front line of an ongoing struggle to define what conservation looks like without federal oversight. It has recently petitioned the federal government to remove grizzlies’ endangered species protections, giving management of the bears back to the state.
There has long been a tug-of-war between federal and state wildlife managers over how to handle both predators and prey. Predators, like the wolves, were hunted to extinction in the 19th century; grizzlies nearly went extinct except for the population in the park. In times of crisis, the federal government took control of these species to avoid extinction, and imported Canadian wolves, creating new American packs.
When Wildlife Protections Create Unforeseen Problems
But the history of federal conservation in the region is often a story of what happens when strategies work too well.
When settlers moved into Jackson Hole, in the southern region of the Yellowstone ecosystem, they built the town and ranching operations in the wintering grounds of the Jackson Elk Herd. In the winter of 1908-1909, the mass starvation of the local herd led Congress to create the National Elk Refuge on a plot of land on the north side of town. Elk — a favorite prey of the state’s hunters — could be fed there throughout the winter to prevent die-offs.
In the 1940s, the Wyoming Game … Fish (WGF) recognized the refuge’s success in not only boosting elk populations for hunting, but keeping elk from damaging stored crops or spreading diseases to livestock. It added a system of 22 nearby winter feedlots offering supplemental food for many western Wyoming herds when snowfall makes natural forage more difficult.
In recent years, however, the feedlot system has been called into question as Chronic Wasting Disease, a deadly sibling of Mad Cow Disease, threatens to devastate local elk populations and limit the number of elk that hunters can harvest. By some models, the disease could eliminate all of the Greater Yellowstone elk population by the end of the century. The very system that saved elk 100 years ago may lead to their extinction in a matter of decades.
State Wildlife Managers Balance Population Control With Ensuring Enough Elk for Hunters Who Pay the Bills
Wyoming officials have twin goals in wildlife management. They need to maintain an appropriate number of wolves, grizzlies and elk — and their definition of “appropriate” is very different from that of their federal colleagues.
They also need to generate the revenue to pay for wildlife management.
Sustaining current populations and harvest numbers is essential to funding the Game and Fish Department. “Seventy to 80% comes from hunting and fishing licenses,” said Peter Dube, the president of the commission. Those revenues amounted to $83 million in 2021. Elk were the biggest money-makers, bringing in $25.8 million and making up about a third of hunting revenues in 2021. They were followed by deer and pronghorn, which are also susceptible to chronic wasting disease.
When it comes to management of ecosystems, differing state policies can result in an inconsistent system, making it extremely hard to achieve a common conservation objective. In 2017 wildlife commissioners in Montana, worried that migrating elk would bring the disease to their state, asked Wyoming to stop feeding the elk. The National Elk Refuge, under federal management, began to phase out the feeding program as the disease appeared.
But Wyoming wildlife officials wanted to keep it going. They launched an effort to determine how ending elk feeding would affect hunters and ranchers. Dube said the results of the initiative won’t come until later this year; any decisions on policy changes are still “down the line.” As decisions remain on hold, the disease continues to spread.
Elk remain central to Wyoming’s wildlife management. So do predators like wolves and grizzlies, but for different reasons. The attitude towards predators always focused on ruthless removal. Efforts to eliminate wolves and grizzlies in the 19th and 20th centuries were so successful that the pockets of the remaining animals were quickly put under the protection of the Endangered Species Act after it became law in 1973. Protections were strongest on federal lands, like national parks.
Grizzlies were fed and cared for until 1970; having lost the ability to forage on their own, they began to die out. In 1975, Yellowstone grizzlies were put on the endangered species list.
The Endangered Species Act Has Held Hunters — and State Governments — at Bay
In the ensuing decades, both grizzlies and wolves have bounced on and off the endangered species list. Successful resuscitation of some wolf packs and grizzly populations led to increasing conflicts with ranchers and outdoor recreationalists outside park borders. Most recently, a Feb. 10 court decision relisted wolves as an endangered species, though not in Montana, Idaho, or Wyoming. In 2012 Congress had preempted the courts, giving these states final say over wolf management.
Similarly, in 2017 grizzlies retained endangered species protection, but only after federal judge Dana Christensen blocked the federal Fish … Wildlife Service’s effort to delist them. Before it could be delisted, he ruled, the Yellowstone grizzly needed to connect with the Northern Continental Divide Ecosystem — the area in and around Glacier National Park — to ensure the species’ genetic viability and its climate resilience.
The decision marked the third failed delisting attempt since 2007. Dube’s explanation: conservation groups feared state regulators’ decisions would “annihilate” the grizzlies. Meanwhile WGFD and Wyoming Gov. Mark Gordon are pushing to eliminate endangered-species protections for grizzlies. “It’s abundantly clear that we have to have some management authority over these grizzlies in areas that we don’t want them,” Dube said.
“I think it’s our increase in damage claims. We’re concerned about not only personal safety, but … people’s livelihoods and … when [bears] get into beehives and all kinds of different things, you know, we start seeing bears out in corn mazes… We don’t need that,” he added.
As federal conservation controls restored grizzly and wolf populations within the borders of Yellowstone National Park, state officials continued to fight to keep the two species from repopulating areas from which they had been eradicated.
Where Wolves Lost Protection, Extermination Efforts Followed
Like grizzlies, wolves are unwelcome outside of park borders. In a circle around Yellowstone, state wildlife officials allow trophy-hunting of wolves that venture outside of park boundaries. Beyond that region — in roughly 85 percent of the state — the Wyoming Department of Agriculture controls predators; they can be exterminated as agricultural pests.
This approach has fostered controversial wildlife-killing contests, often focused on coyotes and other species that prey on livestock. Management in these zones largely resembles the campaigns that eradicated large predators from much of the West 100 years ago.
Actions of state legislatures in Montana and Idaho recently led to the largest mass extermination of wolves since the early 20th century. More than 500 were exterminated in those two states this winter. Wyoming, whose wolf population is at the federally mandated minimum, could not follow suit — if they had, they would have triggered emergency federal controls. Nonetheless, inside Yellowstone, the Phantom Lake pack has now likely been eliminated by hunts that drew its members out by baiting with meat just beyond the park’s borders.
Yellowstone Park officials told the AP that this hunting season was, “a significant setback for the species’ long-term viability and for wolf research.”
Interior Secretary Deb Haaland recently condemned the escalating war on wolves. “We have communicated to state officials that these kinds of actions jeopardize the decades of federal and state partnerships that successfully recovered gray wolves in the northern Rockies,” she wrote in an opinion column in USA Today.
Haaland threatened to invoke an emergency endangered species listing, pending federal regulators’ formal findings that would support a request to Congress to reverse the judge’s 2012 ruling.
Dube takes pride in Wyoming’s ability to keep wolves at their mandated minimum population. “Do people think… there should be more [wolves]? Yes. Do people think there should be less? Yes. So I think we’ve done well within the constraints that we have,” he said.
State Controls Often Stand in Opposition to Federal Practices
At the heart of wildlife conflicts in the West is the perennial issue of state’s rights. In Wyoming, hunters and ranchers control the state’s wildlife and benefit financially from removing predators and providing elk with feedlots.
When it comes to elk, grizzlies, and wolves, the WGF commission is the primary governing body for conservation policy. Dube says his department is, “bar none, probably the best wildlife agency in the world.” He sees the funding structure, based on hunting and fishing, as the department’s greatest success. “We do not get funding from the state legislature, so I think that helps tremendously. Politics can somewhat stay in the background,” he said.
The best wildlife agency? Lisa Robertson, founder of Wyoming Untrapped, has her own view. “To stake a claim as the ‘best,’ we must move beyond the old status-quo goal of “grow ’em to hunt ’em.”
The commission, populated by gubernatorial appointments, remains highly political. Of the seven current commissioners, six are either avid hunters, come from multi-generation ranching families, or both. Dube spent most of his career running a hunter-outfitting business and raising cattle. Commissioners are not required to have any particular qualifications other than aligning with the governor’s vision of the state.
Kevin Bixby, a lifelong conservationist from New Mexico, worries about the lack of diverse representation and scientific knowledge on wildlife commissions. He founded the Wildlife For All initiative to push for greater diversity of priorities in wildlife management. He believes ranchers and hunters “should have a voice at the table, but they shouldn’t be the only voice.”
“Less than 20% of Americans hunt or fish, so they would be a minority,” Bixby said. He hopes to make wildlife management more democratic with both diversity of representation and funding that comes from the public generally. “The reality is hunters pay and they become the primary constituents of the agencies, and the agencies feel they need to serve their primary customers… It’s a terrible way to protect biodiversity,” he said.
Nonprofit Organizers Seek to Add People of Different Backgrounds to State Wildlife Agencies
Bixby and other nonprofit organizers understand that federal control is unlikely to last over long periods, and want to see a more progressive, ecology-oriented view to take hold with state regulators.
Several wildlife advocacy nonprofits have popped up in the state in response to concerns over the prevailing wildlife management policies. Wyoming is among the worst “in archaic trapping regulations and the lack of animal cruelty protection laws. Non-consumptive voices don’t count at all,” Robertson said. Among a long list of her goals, keeping grizzlies and wolves on the endangered species list rises to the top. Many conservationists view the act’s role today as a stopgap until state wildlife policies change or additional federal policies are enacted.
“The Endangered Species Act can only go so far,” Bixby said. A species has to be in bad shape for it to be listed and then you always have efforts in Congress to undermine the act, to change it and to weaken it. Then you’re always at the mercy of the courts and their interpretation of what the [U.S.] Fish and Wildlife Service decides to do.”
Roberston and Bixby want to nominate representatives from diverse groups to fill three upcoming vacancies on the WGF commission, including Dube’s role. Whether their nominees are appointed, however, depends on a Republican governor.
The extreme differences between state and federal approaches make removing a species from the federal endangered species list highly contentious.
Robertson worked for the federal Fish and Wildlife Service for 10 years until 2008, running wolf-tracking flights to study the newly re-introduced animals in Yellowstone. But as she immersed herself in Wyoming’s wildlife policies, she became disillusioned by the disconnect between federal and state managers.
“What disappointed me the most at that time was the feds actually turned over wolf management to Wyoming, knowing that the cruelty factor was as bad as it could possibly be for 85% of the state where wolves are predatory animals,” she said. “They were tired of it. They were ready to move on and so they did.”
Seeing Wildlife Managers as Trustees of the Future of Wyoming’s Lands
Why is changing Wyoming wildlife policy so hard? Kristin Combs, the director of Wyoming Wildlife Advocates, believes that ideas about conquering nature left over from the 19th century western expansion are still prevalent.
As long as permissive state policies take hold each time federal oversight ends, conflicts over endangered species listings will persist. “There’s just this very much this feeling of like, we have to be involved. Humans have messed the landscape up so much that we can’t just let nature play out right now,” Combs said.
Advances in conservation science over the past 50 years led to a whole-ecosystem approach and more hands-off management at the federal level. Wyoming’s approach remains unchanged. “Some animals were seen as good, others were seen as bad and that [viewpoint] is very much alive and well here today,” Combs explained.
From feeding elk to exterminating predators, Wyoming wildlife management is hardly hands-off. The agricultural sector dominates the state government. State legislators, who set the rules for WGF, work part time in the winter months, which suits farmers and ranchers. “Getting to the point where you can overcome the agricultural community that’s so embedded into the legislature is very difficult.…” Combs said.
When Combs works with conservationists in other states, “it’s no surprise to anybody that Wyoming is a tough state to work in when you’re dealing with wildlife issues and animal rights,” she said. “I just want to see [conservation] … be seen as part of a larger progressive agenda to bring justice to this country,” Bixby explained.
Bixby believes that “wildlife is a public trust and the government is a trustee, and [they have] a duty as trustee to manage and protect the public trust for the benefit of all.”
“But ‘all’ is open to interpretation.”
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