Wolves Back on the Endangered Species List

Update Aug. 5, 2010: In an exhaustive opinion, U.S. District Judge Donald W. Molloy struck down the U.S. Fish & Wildlife Service (FWS) 2009 Rule that delisted or removed northern Rocky Mountain gray wolves from the endangered species list in all geographic areas except Wyoming.

The rule was initially put forth during the Bush administration and then adopted by the Obama administration on May 4, 2009.

FWS’ Final Rule declared "(1) the [northern Rocky Mountain Distinct Population Segment (DPS) of gray wolves]  is not threatened or endangered throughout ‘all’ of its range …; and (2) the Wyoming portion of the range represents a significant portion of range where the species remains in danger of extinction because of inadequate regulatory mechanisms." 74 Fed. Reg. 15,123.

The Final Rule "removes the Act’s protections throughout the [northern Rocky Mountain] DPS except for Wyoming."  In its 2007 wolf management plan, Wyoming refused to commit to maintaining 15 breeding pairs and other than around Yellowstone where wolves could only be hunted as big game animals, the state planned to allow wolves to be shot on sight.     

The judge found in issuing this Rule "[FWS] is misconstruing the plain terms of the [Endangered Species Act, 16 U.S.C. 1531 et seq.] and disregarding the intent of Congress".  An "endangered species" is "any species", said the court, "meaning species, subspecies or [distinct population segment]…that is in danger throughout all or a significant portion of [the species’] range." Id. at § 1532(6). The judge found FWS had no authority to "list only part of a ‘species’ as endangered, or to protect a listed distinct population segment only in part". In effect, FWS could not maintain the listing of the gray wolf as endangered in Wyoming but delist the animal everywhere else. As the judge explained, "the Endangered Species Act does not allow a distinct population segment to be subdivided."

Judge Molloy concluded, "Accordingly, the rule delisting the gray wolf must be set aside because, though it may be a pragmatic solution to a difficult biological issue, it is not a legal one."  

Wolf hunts in Idaho and Montana have been canceled in view of Judge Molloys’ ruling.

For more on this case and the fight to save the Rocky Mountain gray wolves, read Animal Law Coalition’s earlier reports below.

Update Sept. 9, 2009: U.S. District Court Judge Donald Molloy has denied a motion to enjoin gray wolf hunting until the lawsuit brought by several organizations can be resolved. 

In denying the motion for preliminary injunction, the judge found the plaintiffs had not shown a threat of irreparable injury. The deaths of even 20% of the wolves from hunters was not considered enough of a threat. The judge pointed out that:

"Defendants provide affidavits from scientific experts that a wolf population such as the northern Rocky Mountain [population]… can sustain single season harvest rates in excess of 30%. The wolf hunts here, even if they reach the maximum take in both states, would mean taking about 20% of the wolf population, well below what scientists believe the population can easily withstand through a one- or two-year hunt. The conservative estimate in the record for the northern Rocky Mountain’s growth rate of 22% is in excess of the two states’ planned kills of 21% of the [population]….

In addition, the hunt is not expected to have any impact on the genetic connectivity of the [population]. …

The Defendants have offered scientific evidence that no irreparable harm will occur if the 2009 wolf hunts occur in Idaho and Montana. Plaintiffs have failed to offer any contrary evidence. As such, assuming that the taking of a single animal is not the standard, there is no basis to find irreparable harm that would justify a preliminary injunction in this case."

Judge Molloy did find, however, that ultimately plaintiffs may prevail.  In his opinion, the judge observed, "[E]ven if the [FWS] was permitted to delist only a part of a DPS like it has done here, it cannot do so in an arbitrary and capricious manner. The Service has distinguished a natural population of wolves based on a political line, [state boundaries,] not the best available science. That, by definition, seems arbitrary and capricious."   The plaintiffs had claimed the delisting was a piece meal violation of the Endagnered Species Act, in leaving only Wyoming wolves protected.

For more on this fight to save the gray wolves from hunters, read Animal Law Coalition’s reports below.  

Update Aug. 28, 2009: In just a few days on September 1, 2009, a wolf massacre will begin in Idaho. You remember last year when Gov. C.L. "Butch" Otter relished the idea that he might be the first to kill a wolf once they were delisted, meaning no longer entitled to the protections of the Endangered Species Act?

Well, he might not have the first kill, but Gov. Otter will be able to hunt wolves to his heart’s content beginning next week. Idaho plans to allow 220 wolves and maybe hundreds more to be killed.

Wolf hunting is scheduled to begin in Montana in October. 75 wolves can be killed in that hunt. 

The Obama administration has in the end fully supported the Bush administration’s efforts to delist the Rocky Mountain gray wolf. In a rule announced on April 2, 2009 and effective on May 4, gray wolves in Idaho, Montana, the eastern one third of Washington and Oregon and north central Utah, were delisted. 74 FR 15123 The wolves in Wyoming remain protected because of the state’s lack of an acceptable wolf management plan.

Hundreds of wolves will be slaughtered as a result. The killing is indiscirminate, of course, destroying families and leaving pups orphaned and unable to fend for themselves. Why did the government bother to restore the gray wolf populations only to allow them to be hunted down and killed by the hundreds, probably below a number that will leave a genetically viable population?  

It should be noted the Obama administration at the same time also issued a regulation supporting the Bush era plan to delist wolves in what is described as the Western Great Lakes region including Minnesota, Wisconsin, and Michigan; the eastern half of North Dakota and South Dakota; the northern half of Iowa; the northern portions of Illinois and Indiana; and the northwestern portion of Ohio. 74 FR 15070  

There is some hope. On Monday, August 31, 2009, U.S. District Judge Donald Molloy, the same judge who enjoined the delisting of the Northern Rocky Mountain gray wolves last year, is hearing a motion for a preliminary injunction. If the judge grants the motion, it would mean the delisting would be enjoined and the proposed wolf hunts in Idaho next week and Montana later in the fall would be stopped.

The motion was filed in a case brought by a number of plaintiffs:  Defenders Of Wildlife, Natural Resources Defense Council, Sierra Club, Humane Society Of The United States, Center For Biological Diversity, Jackson Hole Conservation Alliance, Friends Of The Clearwater, Alliance For The Wild Rockies, Oregon Wild, Cascadia Wildlands, Western Watersheds Project, Wildlands Network, and Hells Canyon Preservation Council.

The plaintiffs claim the U.S. Fish & Wildlife Service (FWS) violated the Endangered Species Act, 16 U.S.C. §1531 et seq., and Administrative Procedure Act, 5 U.S.C. §706 in delisting these wolves.

They claim the delisting was piece meal in leaving only Wyoming wolves protected. Because the Wyoming wolves are endangered, say the plaintiffs, all of the wolves in the distinct population segment (DPS), should be listed. They say that is because Wyoming constitutes a "significant portion" of the wolves’ range. The plaintiffs claim that, in fact, the FWS should have considered the gray wolves in the entire lower 48 states rather than identifying this new DPS and delisting it.

The plaintiffs say the FWS relied on outdated data in determining the number of wolves that should be left to assure genetic viability. According to recent data, more than 300 wolves are "required before a wolf meta-population, with sufficient genetic connectivity between sub-populations, is established".  Also, Idaho and Montana only committed to maintaining 100-150 wolves, if that, and FWS failed to consider the sufficiency of so few wolves for genetic viability.

Moreover, the plaintiffs allege FWS failed to "find that the population is not threatened or endangered by ‘natural or manmade factors affecting its continued existence’".  Like hunting sprees.

The FWS is also said to have failed to consider loss of historic range and the conservation of the gray wolf:

"Rather than drawing a line around a wolf population with a conservation status different from that of other populations of the species, as required under the ESA, FWS established a northern Rockies DPS that includes large expanses presently unoccupied by wolves. The Service’s action, therefore, eliminates legal and habitat protections beyond the currently occupied range, though the wolf’s conservation status in those areas has not changed from when the wolf was listed as endangered. See 43 Fed. Reg. at 9,611.

"By including within the northern Rockies gray wolf DPS largely unoccupied portions of Montana, Idaho, Oregon, Washington, and Utah, and then delisting that DPS, the Service has essentially created a moat around existing wolf populations in core recovery areas that will ensure that wolves do not disperse to suitable habitat outside of the DPS where the wolf is still protected as endangered. Rather than promoting the continued recovery of wolves outside the DPS, therefore, the Service’s action severs crucial dispersal corridors by eliminating federal protections for dispersing wolves and leaving them subject to inadequate state mechanisms and intensive federal, state and private predator-control actions.

"The Service’s decision to eliminate crucial protections for wolves over an arbitrarily large northern Rockies gray wolf DPS violates the Service’s obligation to conserve endangered and threatened species and the ecosystems on which they depend".

Read Animal Law Coalition’s reports below for more on the delisting, court challenges including Judge Molloy’s earlier decision, and the wolf management plans. 

Jan. 17, 2009: Days before the long awaited end of the Bush administration, this president reminds us once again why we want him gone.

The U.S. Fish & Wildlife Service has now de-listed the wolves in Idaho and Montana, meaning the Northern Rocky Mountain Gray wolves in those states no longer have the protections of the Endangered Species Act. Wolves in the Western Great Lakes were delisted as well.

This after federal Judge Donald Molloy first issued an injunction as described in the original report below against delisting the Rocky Mountain Gray wolves and then on October 14, 2008 ruled the wolves in Idaho, Montana, and Wyoming could not be delisted. This also comes after USFWS announced it would not try to delist these animals again.

For more on what the judge had to say and the history of this controvery, read Animal Law Coalition’s original report below.

Deputy Secretary of the Interior Lynn Scarlett announced: "Wolves have recovered in the Great Lakes and the northern Rocky Mountains because of the hard work, cooperation and flexibility shown by States, tribes, conservation groups, federal agencies and citizens of both regions. We can all be proud of our various roles in saving this icon of the American wilderness."

Because there is no approved management plan in place in Wyoming, USFWS did not delist the Rocky Mountain Gray wolves in that state. In fact, in his earlier opinion discussed below, Judge Molloy pointed out the original plan would have allowed hunting of nearly 90% of the wolves in Wyoming.

Montana and Idaho’s plans propose to keep the wolf populations at 15 breeding pairs and 150 wolves in each state with a target population at 400 animals in Montana and 500 in Idaho. It is estimated that currently there are 100 breeding pairs and 1,500 wolves in Montana, Idaho, and Wyoming.

Do the math. Delisting means hunters will be allowed to decimate these wolf populations as soon as the delisting goes into effect –  30 days after the rules are published in the Federal Register.  

Original report: The Center for Biological Diversity is reporting that the Bush Administration’s U.S. Fish & Wildlife Service is retreating from its efforts to delist or remove Northern rocky Mountain gray wolves from the list of endangered species.

USFWS is expected to withdraw a ruling issued earlier that delisted these wolves effective March 28, 2008.  73 Fed. Reg. 10,514 Delisting the wolves would have meant they could be hunted in Wyoming, Montana, and Idaho by the public.

This comes as welcome news!

This past summer U.S. District Judge Donald Molloy in Montana had issued an order enjoining or stopping the delisting pending resolution of a lawsuit challenging the USFWS action. That case is entitled, Defenders of Wildlife, et al. v. Hall (D. Mont. Doc. No. CV-08-56) and challenged the delisting.  Now it appears the USFWS will stop trying to delist these animals.   

The Endangered Species Act, provides "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species . . . ." 16 U.S.C. § 1531(b). It is unlawful for any person to "take any [endangered] species within the United States."  16 U.S.C. § 1538(a)(1)(B). The Act defines "take" very broadly to include kill, harass, or harm. Id. at § 1532(19).

The USFWS had declared the Northern Rocky Mountain gray wolves were a distinct population segment that is not in need of such federal protection. This would mean the states in this region would have been allowed to "manage" wolf populations in their respective states.

Idaho Governor C.L. "Butch" Otter welcomed the delisting. He had announced that he would manage the gray wolf populations by allowing hunting of as many as possible, up to 550. That would only leave about 100 wolves or 10 packs.  Idaho was poised to kill up to 75% of the wolves living in the Lolo district of the Clearwater National Forest.

Gov. Otter, a former rancher, even announced, "I’m prepared to bid for that first ticket to shoot a wolf myself."  Hunters had complained the wolves kill elk and other animals they like to hunt themselves. The wolves were said to be hurting the state’s multi-million dollar hunting business.

Wolves were reintroduced to Idaho and other Rocky Mountain states in 1995 and 1996 following a 1994 Environmental Impact Statement. The wolves had been hunted to near-extinction decades earlier. The minimum recovery goal for gray wolves in the northern Rocky Mountains was 30 breeding pairs and at least 300 wolves for three consecutive years.  This goal was first attained in 2002.

On April 1, 2003 the U.S. Fish & Wildlife Service issued an order to establish Western gray wolves as a distinct population segment that is threatened but not endangered. 68 F.R. 15,804. On January 31, 2005 an Oregon federal court entered an injunction stopping the reclassification of the gray wolf from endangered to threatened.

By the end of 2005, the Service estimated that 1,020 wolves and 71 breeding pairs were in the northern Rocky Mountains. 

Wolves are social animals. They typically live in packs of 2 to 12 animals. Wolf packs are usually family groups consisting of a breeding pair, their pups from the current year, offspring from previous years, and at times maybe an unrelated wolf. Wolf pack structure can be ‘‘complex”, meaning many generations, or ‘‘simple”, a breeding pair and their pups. In the Northern Rocky Mountains, pack sizes average about 10 wolves in protected areas, but a few complex packs have been much larger in areas of Yellowstone National Park.

During this recovery period since 1995 the USFWS has managed the wolf populations in these states. In Idaho the Nez Pierce tribe assisted USFWS with the management of wolves. In January, 2005 the state of Idaho assumed some responsibilities for wolf management. The state developed a wolf management plan with the goal of having USFWS delist the wolves. The state planned to "manage" the wolves, once delisted, however, basically by hunting and killing them.

This unnatural destruction of wolves is not only cruel, but also would have decimated packs, family groups. 

The USFWS had approved the Idaho wolf management plan and also one issued by Montana. A plan offered by Wyoming to slaughter 200 of the state’s gray wolves, about 2/3 of the total population, was rejected by USFWS.

Then on August 1, 2006 the USFWS announced in the Federal Register a plan to establish the gray wolves basically in Montana, Idaho and Wyoming as the Northern Rocky Mountain Distinct Population Segment and remove them from the endangered species list.

But Wyoming’s lack of a satisfactory wolf management plan held up the delisting. USFWS said Wyoming law must be changed to give the Wyoming Game and Fish Department (WYGF) the legal authority to manage for a wolf population that contains a minimum of 10 breeding pairs and 100 wolves in mid-winter. The State "predatory animal" status prohibits WYGF management from maintaining the minimum number of wolf packs necessary outside of the National Park units in northwestern Wyoming. 

USFWS said in order to delist the Northern Rocky Mountain gray wolves, the Wyoming state wolf plan must (1) classify wolves as trophy game or similar status rather than predatory animals to allow the state to regulate the killing of these animals outside the National park units in order to maintain the minimum number of wolf packs; (2) commit to managing wolves to ensure that the Wyoming segment of the northern Rocky Mountain wolf population never goes below 10 breeding pairs and 100 wolves in mid-winter and maintain some wolf packs in northwestern Wyoming outside the National Park Units; and (3) define a wolf pack by scientific standards that approximate the current breeding pair definition "so that Montana, Idaho, and Wyoming all use similar criteria to manage for and maintain for a recovered wolf population".

On October 10, 2006 the State of Wyoming filed a lawsuit in Wyoming federal court, in essence, challenging the USFWS’ refusal to approve the state’s wolf management plan and delist the gray wolves from endangered species protections. The State charged the actions of USFWS in this regard were arbitrary and capricious and violated the 5^th and 10^th amendments to the U.S. Constitution. The petition complained the USFWS now required the preservation of more than 100 wolves, more than contemplated by the original 1994 Environmental Impact Statement.

USFWS then basically agreed to Wyoming’s plan.  

Click here to check out each state’s wolf management plan.

In issuing a preliminary injunction against the delisting, Judge Molloy wrote, "In my view, Plaintiffs are likely to succeed on the majority of the claims…. In particular, (1) the Fish & Wildlife Service acted arbitrarily in delisting the wolf despite a lack of evidence of genetic exchange between subpopulations; and (2) it acted arbitrarily and capriciously when it approved Wyoming’s … plan…. In both instances, the Fish & Wildlife Service altered its earlier position without providing a reasoned decision for the change based on identified new information.

"As recently as 2002, the Service determined genetic exchange between wolves in the Greater Yellowstone, northwestern Montana, and central Idaho core recovery areas was necessary to maintain a viable northern Rocky Mountain wolf population in the face of environmental variability and stochastic events.

"The Fish & Wildlife Service nevertheless delisted the wolf without any evidence of genetic exchange between wolves in the Greater Yellowstone core recovery area and the other two core recovery areas. To justify its decision, the Service relied on the same information that was available to it when it determined genetic exchange was necessary in 2002."

Judge Molloy continued, "In 2004, the Fish & Wildlife Service rejected Wyoming’s 2003 wolf management plan. The Service determined the 2003 plan was inadequate to protect wolves because it permitted Wyoming state officials to classify the wolf as a predatory animal throughout the state and then failed to clearly commit the state to managing for 15 breeding pairs within its borders. Before delisting the wolf, the Fish & Wildlife Service approved Wyoming’s revised 2007 plan. This revised plan suffers from the same deficiencies as the 2003 plan: it classifies the wolf as a predatory animal in almost 90 percent of the state and only commits the state to managing for 7 breeding pairs outside the national parks.

"In supporting its decision to approve Wyoming’s 2007 plan, the Service does not offer any information not available to it when it rejected the 2003 plan. Armed with the same information, the agency flip-flopped without explanation. While the Fish & Wildlife Service can change its recovery criteria, it must nevertheless provide a reasoned analysis for the change of position and if it does so, its decision is entitled to deference. The Service has failed to do so here. Thus, in my view, Plaintiffs are likely to succeed on several of their claims."

The judge also observed, "[With delisting, m]ore wolves will be killed under state management than were killed when ESA protections were in place. Idaho, Montana, and Wyoming each have public wolf hunts scheduled….l. Additionally, the states’ defense of property laws permit the killing of wolves in more circumstances than defense of property regulations under the ESA. The killing of wolves during the pendency of this lawsuit will further reduce opportunities for genetic exchange among subpopulations. Genetic exchange that did not take place between larger subpopulations under ESA protections is not likely to occur with fewer wolves under state management. Absent genetic exchange, the viability of the wolf will be threatened…."