Judge reinstates protection for northern gray wolf

Aug 13, 2010

In a long anticipated decision rendered on Aug. 4 in Missoula, MT, U.S. District Court Judge Donald Molloy ruled in favor of reinstating federal protection for wolves in the Northern Rockies under the auspices of the Endangered Species Act (ESA). This ruling effectively returns management control of the predator to the federal government, rescinding the U.S. Fish and Wildlife’s (USFW) earlier decision to turn management of wolves over to state control in Idaho, Montana, and parts of Oregon.

The decision represents the second time that Molloy has reinstated ESA protection following attempts by USFW to declare the predator recovered. After USFW officially delisted wolves in the Northern Rockies in 2008, the decision was overturned by Molloy, who felt that the management plan submitted by one of the states, Wyoming, was inadequate to provide for an ongoing population.

In response, USFW revised their plan, essentially choosing to delist wolves in Montana and Idaho while maintaining federal protections in Wyoming. Almost immediately following that designation, lawsuits were filed by Defenders of Wildlife, and other environmental groups, seeking to prevent USFW from turning control of the animals over to the individual states. Central to the lawsuits was the claim that USFW was violating the ESA by choosing to delist along a political boundary, rather than a scientific one. They argued that, in doing so, USFWS was illegally subdividing a ‘distinct population segment.’ Molloy ultimately agreed with this contention, and ruled in favor of the environmentalist’s demands.

"It appears the Service is misconstruing the plain terms of the ESA and disregarding the intent of Congress by taking the course it has in the Final Rule," wrote Molloy. "The agency has no authority to add a new categorical taxonomy to the statute. Only Congress can do that as is shown by the history of the Act itself."

The judge did recognize that USFW was legitimately attempting to resolve the dispute caused by his own ruling regarding Wyoming’s wolf plan, but still ruled that USFW could not draw habitat boundaries along state lines.

"Even if the Service’s solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA," he wrote.

According to Molloy’s ruling, wolves’ removal from the endangered species list must include all wolves in the West, or none at all. USFW officials still point to Wyoming’s wolf plan as the primary impediment to a complete delisting of wolves. In a release following the ruling, Assistant Secretary of the Interior Tom Strickland laid the delisting problems squarely at Wyoming’s door.

"Today’s ruling means that until Wyoming brings its wolf management program into alignment with those of Idaho and Montana, the wolf will remain under the protection of the Endangered Species Act throughout the Northern Rocky Mountains," he said.

Wyoming’s plan, which grants protection to wolves in the northwest part of the state, but classifies them as predators everywhere else, was regarded as too aggressive by Molloy, who used it as his primary reason to relist wolves in 2008. Following that decision, Wyoming made changes to its plan, but held fast on the matter of the wolves’ dual status as trophy animal or predator in different regions of the state. Fearing further interference from Molloy, USFW left Wyoming out when wolves were again delisted in 2009. In response, Wyoming filed suit in U.S. District Court seeking to force USFW to accept their plan. The judge’s decision in that case is still pending, and to date, Wyoming shows no inclination to alter their wolf management plan. Bruce Salzburg, Wyoming’s attorney general, has disagreed publicly with Tom Strickland’s assessment of the situation, stating that had USFW properly reviewed the changes made by the state in 2008, they would have found Wyoming’s plan adequate to protect its wolf population.

The ruling comes as a blow to state fish and game agencies in Montana and Idaho, both of whom considered themselves to be doing a more than adequate job in managing wolves. Hunting, though hotly contested, was a component of management in both states, a practice that both states say should be helpful to populations of other wildlife, particularly elk. 2009 hunting seasons were regarded as successful, and both states had plans for a 2010 season. The relisting has brought an immediate halt to wolf hunting. However, Jim Unsworth, deputy director of Idaho Fish and Game, stated that Idaho will continue to examine the possibility of continued wolf hunts, despite their return to ESA status, pointing out that other endangered species, such as salmon, are harvested regularly by sportsmen. In a conversation with the Idaho Statesman, Unsworth expressed his agency’s disappointment over Molloy’s ruling.

"We’re frustrated, we’re angry, we’re disappointed," he told the paper. "We’ve played by the rules, but (Molloy’s) decision allows procedural technicalities to overcome sound science and common sense."

Idaho’s ranching community is equally frustrated with the ruling. In a statement distributed shortly after the ruling was announced, members of the Idaho Cattle Association (ICA) voiced their displeasure at Molloy, pointing out that maintaining ESA protection for the wolves goes against the government’s own introduction plans, which called for wolf numbers that have long since been exceeded.

"For years, Idaho’s cattlemen have acted in good faith, trusting that the government would come through on its promise to delist the wolves when population targets were met. Those targets were met several years ago. Despite the repeated broken promises of delisting, ranchers tried to live and operate under the stringent regulatory framework of the Endangered Species Act," the group said.

ICA members also feel that the lawsuit that led to the judge’s decision illustrates the environmental movement’s focus on control over public land, rather than conservation.

"(The environmental groups) have driven a figurative stake through the heart of conservation through cooperation. Their desire is obviously to control land use activities through manipulation of an outdated law," ICA noted.

For ranchers at risk in Idaho, there is still some chance of relief when wolves come calling. Under rule 10j of the ESA, wolves found south of I-90 are deemed part of a ‘nonessential experimental population,’ meaning that control measures may still be used when livestock depredation or wildlife impacts become too great. It also means that wolves caught in the act of killing livestock may be lethally removed, although ranchers have pointed out in the past that this level of control is insufficient, and the odds of actually catching a wolf red-handed are slight. The 10j rule, as it is known, also applies to wolves in Montana and Wyoming. Procedurally, officials say that nothing has changed with regard to the reporting protocols that Rocky Mountain ranchers must follow in the event of a wolf kill. In northeast Oregon, however, area ranchers remain unsure with regard to the measures they will be able to take in order to protect their livestock. The 10j rule regarding wolves, as it is currently applied, does not cover wolves once they cross the border into Oregon. This means that wolves in Oregon are likely to come under the full protection of the ESA, a designation that leaves producers unsure how to proceed.

"We don’t know what our protocols are going to be yet," says Rod Childers, rancher and chairman of the Oregon Cattlemen’s Association Wolf Committee. "We don’t fall under the same listing that Idaho does, so we’re not sure what we can do if we have a depredation." According to Childers, meetings have been scheduled between local USFW officials and area ranchers to clarify what the course of action will be. Though nothing is certain, Oregon ranchers worry that the ruling will mean a return to enforcement of the ESA law at a level that denies producers adequate protection for their stock. Childers recalls that under the ESA, two problem wolves in the Baker City area were allowed to kill nearly 30 sheep over the course of several months with little reprisal from officials. He points out that their eventual removal was only authorized following the 2009 decision to delist.

Despite the uproar amongst the states, USFW has expressed no immediate plans to attempt a wolf delisting for a third time. According to Strickland, responsibility still lies with the states, particularly Wyoming, to provide USFW, as well as Molloy, with acceptable management plans.

"The service’s decision to delist the wolf in Idaho and Montana reflected the strong commitments from the states of Idaho and Montana to manage gray wolves in a sustainable manner," he said. "Today’s ruling makes it clear this wolf population cannot be delisted until the state of Wyoming has instituted an adequate management program, similar to those of Idaho and Montana. In the meantime, we will continue to work closely with the states, tribes, conservation organizations, ranchers, and other landowners to manage wolves and ensure the species continues to thrive and coexist with livestock, other wildlife populations, and people," he said. — Jason Campbell, WLJ Correspondent