Wyoming wolf protections at issue in Endangered Species Act case
WASHINGTON, Sept. 28, 2016 - The Fish and Wildlife Service’s decision
to delist the gray wolf in Wyoming relied too much on the state’s word that it
would maintain a viable population of wolves within its borders, an attorney
for environmental groups told a panel of federal judges last week.
The service’s “faith-based approach” to wolf management is not legal
under the Endangered Species Act, Tim Preso, the lawyer for Defenders of
Wildlife and other environmental groups, told the D.C. Circuit Court of
Appeals.
“Right now we’re in a ‘trust us’ mode,” he said. But the ESA “is not a
‘trust us’ statute.”
Wolves are still protected under the ESA because a federal judge rejected the service’s 2012 delisting rule in a
2014 decision, prompting the appeal by FWS and the state of Wyoming.
At issue in the case is Wyoming’s promise to maintain a “buffer” of
wolves to meet the minimum recovery target in the state of 10 breeding pairs
and a total of 100 wolves.
Lawyers for FWS, Wyoming and the conservation groups fielded tough questions
from the three-judge panel, most of them posed by Circuit Judges Judith Rogers
and Nina Pillard. Circuit Judge Janice Rogers Brown also was on the panel.
Pillard asked Justice Department attorney Joan Pepin, representing
FWS, whether Wyoming has “a duty” to manage for a population above 10 breeding
pairs and 100 wolves.
Pepin said it was a “tricky question” but added that there was “no way
to make sure” that Wyoming would meet its legal requirement of 10 breeding
pairs and 100 wolves total without aiming higher.
But Wyoming argued in its briefs to the court that it has no legal
obligation to maintain a buffer above the 10/100 standard, which led Rogers to
express “concern about how firm” the state’s commitment to wolf recovery was.
Pepin insisted that Wyoming would have to keep the population above 10
and 100 in order to meet that requirement. “They don’t want to get close to the
edge,” she said. It’s “common sense” that “there’s no way to be sure that you
will have 10/100 unless you manage above it.”
Wyoming Attorney General Jay Jerde said the state’s Game and Fish
Commission “has the authority to do whatever it has to do” to maintain a total
of at least 10 breeding pairs and 100 wolves, including suspending the issuance
of permits for defense of private property.
The Wyoming Wolf Coalition, which includes the Wyoming Farm Bureau
Federation and Wyoming Stock Growers Association, argued in a friend-of-the-court brief that the National Park Service and
U.S. Forest Service are responsible for managing their lands in the state to
provide the necessary buffer. Wolves cannot be hunted within the boundaries of
Yellowstone National Park, where about 100 wolves were counted at the end of
2015. Another 283 wolves were living in Wyoming outside the park’s boundaries.
In its brief, the coalition said that the district court had “succumbed
to the same circular reasoning that has plagued Wyoming over the last 10 years
– a belief that Wyoming must protect a larger population of wolves outside
of Yellowstone simply because of the fact that the (park) is located within
the state’s boundaries. That approach is illogical and must be set aside.”
FWS statistics show that in the 10 years from 2006-2015,
wolves killed 699 head of cattle and 1,321 sheep in the Greater Yellowstone
Recovery Area, which encompasses northwestern Wyoming and portions of
southeastern Idaho and southwestern Montana.
FWS has been trying to remove wolves in Idaho, Montana and Wyoming –
the northern Rocky Mountains population – from the endangered species list
since 2008. FWS lost a court case challenging the initial delisting rule, and
then issued a new rule in 2009 that removed ESA protection for wolves in Idaho
and Montana based on those states’ management plans, but kept wolves in Wyoming
under federal protection.
Again, conservation groups sued, persuading a federal judge in Montana
to restore protections in Idaho and Montana. Congress intervened, approving a
legislative rider directing FWS to delist wolves in those states.
That left Wyoming as the only state in the region where wolves were
listed as endangered. FWS delisted them again in 2012, relying on Wyoming’s
management plan, which classified wolves in more than 80 percent of the state
as “predators” meaning that wolves could be shot for any reason at any time.
Environmentalists filed another lawsuit, which resulted in a federal
judge’s ruling in 2014 that FWS violated the ESA by not requiring the state to
adopt enforceable regulations to maintain a buffer. FWS and the state of
Wyoming appealed the ruling, leading to the arguments before the appeals court.
To listen to the arguments, go here.
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