Judge ponders 10(j) wolf question
by Cat Urbigkit, Pinedale Online!
March 2, 2011
Federal Judge Donald Molloy issued an "Order to Show Cause" to parties involved in wolf litigation over the U.S. Fish and Wildlife Service’s 10(j) non-essential experimental rules, ordering all parties to file briefs ""showing cause why this case should not be dismissed as moot due to the absence of a population meeting the statutory requirements for 10(j) status."
Last week the court was busy with the filing of those briefs. Here’s a summary of the major content, with the full briefs attached below for those who would like to know more.
Federal Government:
The federal government argued that evidences demonstrates which demonstrates that the Northern Rocky Mountain Gray wolf 10(j) population retains its experimental status, and that the status may be revised only through rulemaking or other affirmative action by the federal government."
"Because the Fish and Wildlife Service has not conducted a rulemaking to alter the status of the experimental population, the experimental designation remains in place and the controversy underlying the instant litigation is not moot. Moreover, because no party has raised a claim, established jurisdiction (including Article III standing), or otherwise alleged that the Service failed to take an affirmative, regulatory action to alter the underlying experimental population designation, whether the Service can properly maintain such a designation is beyond the scope of the claims pending before this Court."
Plaintiffs (Defenders of Wildlife, etc.):
In this case, Plaintiffs argue that FWS overstepped its authority under section 10(j) by adopting regulations that violate the agency’s ESA mandate to conserve listed species.
The Plaintiffs argued that FWS has a duty to ensure that "reintroduced populations are managed in a manner consistent with the Endangered Species Act. If a population does not presently meet section 10(j)’s criteria for "experimental" status because it overlaps with a naturally present wolf population, it may not be managed under the relaxed standards available under that provision."
Section 10(j) states that reintroduced populations of threatened or endangered species may be managed as "experimental" populations "only when, and at such times as," they are "wholly separate geographically from nonexperimental populations."
"This Court need not answer that question to exercise jurisdiction over this case. First, if the reintroduced wolf populations are ‘experimental,’ Plaintiffs’ claims are not moot because the challenged 10(j) regulation continues to govern their management. Second, even if the reintroduced wolf populations are not currently "experimental," they may regain that status and the challenged regulation may be revived at any time. Under this scenario, the ESA violations alleged in Plaintiffs’ complaint present a live controversy because they are ‘capable of repetition, yet evade review.’ Either way, Plaintiffs’ claims present a live controversy and should be resolved on their merits."
Wyoming’s brief:
"The wolf population in the Yellowstone recovery area continues to be an experimental population regardless of any movement or interbreeding between wolves in the Yellowstone recovery area and any other wolf population in the region. Even if the wolf population in the Yellowstone recovery area no longer satisfied the legal criteria necessary to be an experimental population, federal agency action is required to remove the experimental population status."
"Individual wolves do not constitute a population. Therefore, an experimental population remains "wholly separate geographically" from a non-experimental population even if individual wolves are dispersing between the populations."
The state argued:
"The concerns about the impact of geographic and genetic connectivity on the experimental status of the wolf population in the Yellowstone recovery area are unfounded. Even though some movement and interbreeding between populations apparently has occurred, the wolf population in the Yellowstone recovery area continues to satisfy the legal criteria necessary to be an experimental population. Accordingly, this case is not moot."
Wyoming also argued that the Secretary of the Interior must properly rescind or revoke the regulation designating a wolf population as "experimental" before the population will lose the "experimental" status.
FWS has not repealed or rescinded{the 10j}regulation, so the regulation remains in full force and effect and will continue to be in effect until repealed or rescinded in accordance with federal law, Wyoming argued.
Idaho brief:
The Idaho brief focused on the success of the wolf recovery program, noting wolves populations in the tri-state region "are well past recovery levels and are genetically-connected via individual wolves dispersing between the three populations. Ironically, with genetic connectivity now well-established, this Court asks not whether connectivity justifies delisting, but whether such connectivity requires that the status of the NEPs be downgraded to endangered.
"The notion that the ESA compels such a giant step backward stands logic on its head," the brief stated.
Safari Club International brief:
The Safari Club brief explains
• "why the determination as to whether any portion of the wolves that are the subject of this litigation meets the statutory requirements for 10(j) status should be left to agency expertise;
• that any change in the status of the experimental populations of wolves would require compliance with full rulemaking procedures; and
• how any revocation of the 10(j) status of these wolves would undermine Congress’ intent to encourage states, tribes and individuals to accept introductions of experimental populations to assist in the conservation of threatened and/or endangered species."
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