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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