Wolf Suit Naps As Clock Ticks Down

by Joy Ufford

No new court action over 10(j) rule before enactment The deadline is six days and counting before the U.S. Fish and Wildlife Service’s new 10(j) rule that authorizes killing of problem wolves becomes official, Feb. 27. If all the other pieces required by Wyoming’s 2007 state law fall into place that day, Wyoming’s – as well as Montana’s and Idaho’s – gray wolves are a step closer to being removed from the Endangered Species List.

And in spite of the suit filed Jan. 28 in U.S. District Court by Earthjustice attorneys on behalf of conservation-group clients against the U.S. Fish and Wildlife Service (FWS), the delisting process appears to be moving along without snags. Earthjustice filed the “complaint for declaratory and injunctive relief” in an effort to stop the rule, which offers the three Northern Rockies’ states greater leeway in using a variety of methods and circumstances for killing wolves, from taking effect. “(Delisting is) still on track and we expect to see something in time to meet the deadlines,” said Bill Rudd,Wyoming Game and Fish (G&F) assistant chief of the Wildlife Division. “(I) have no new information on the lawsuits.”

FWS wolf recovery project leader Ed Bangs also said this week that “there isn’t anything new on the 10(j) case and might not be for some time.”

“At this time there is nothing to respond to and since there are no state proposals to remove wolves, I’m not sure what the court would enjoin,” he had said last week. “I’m assuming this one will grind through the court system, but I can see a request for a court injunction if we approve a state proposal (to remove wolves under the 10(j) rule).”

The 10(j) rule covers the time frame between the FWS acceptance of Wyoming’s state management plan – as well as those of Idaho and Montana –and its projected final delisting from the Endangered Species Act (ESA). It doesn’t cover wolves after they are delisted, when each state’s management plan will be implemented.

“I think delisting will be different and there will likely be requests for injunctions – as the Wyoming predatory-animal status could mean immediate killing of wolves,” Bangs said. “There has to be some form of immediate ‘harm’ for a (Temporary Restraining Order) to be issued – the 10(j) doesn’t meet that standard but delisting will. Whether a judge grants it or not is yet to be seen.” Delisting and the new 10(j) rule are not tied together anywhere except Wyoming, according to Bangs.

“Once delisting happens the 10(j) rule no longer applies,” he explained. “So the States/Tribes with approved plans would only need to give (FWS) a proposal to remove wolves impacting ungulate populations while wolves were listed under the ESA.

“Once (wolves are) delisted there is no 10(j) rule as Section 10(j) is part of the Endangered Species Act, and the states can do whatever their plan says they will do without any federal oversight. Delisting is a totally separate issue from the 10(j) modification. They are two totally different things dealing with two separate parts of the ESA. They only got linked together in Wyoming by the 2007 Wyoming law.”

State law requires...

The new 10(j) rule completes another Wyoming requirement toward delisting as set forth in a 2007 statute that calls for certain actions on or before Feb. 29:

• FWS has published its final 10(j) rule under the Endangered Species Act that modified the 2005 special regulation so it provides “adequate protection” for Wyoming’s wild ungulates;

• FWS must published its final rule to delist the gray wolf in the entire State of Wyoming (which is expected to happen in late February);

• All claims in the lawsuit brought by Wyoming contesting FWS’ actions finding Wyoming’s previous plan inadequate have been resolved or settled;

• And the governor of Wyoming shall certify to the Secretary of State of Wyoming that the actions required by the statute have occurred.

The delisting rule went through “sign-off at higher levels starting in early January” said Bangs recently. “(It) should be published in late February. Each rule becomes legally effective after 30 days. So... delisting (will be effective) in late March.”

Will Gov. Dave Freudenthal authorize a resolution of the state’s lawsuit against FWS?

That depends on how the delisting process turns out, press secretary Cara Eastwood said recently.

“He is hopeful that the Fish and Wildlife Service will follow through on delisting, as it has said it will do, but it is important that the state continue to pursue litigation in case this does not occur,” she had said of the governor’s position.