Judge Sends Wolves Back To Feds
‘10j rule’ now covers Wyoming
by Joy Ufford

Don’t shoot if you see a wolf – the state’s predator hunting area is officially closed, for now.

Wyoming Game and Fish’s role as the state’s wolf managers took a step back Friday after a federal judge imposed an injunction suspending the animals’ delisting from the Endangered Species List.

Wolves in the three “Rocky Mountain population” states – Wyoming, Idaho and Montana – are now back under the auspices of the U.S. Fish and Wildlife Service (FWS) while the suit filed by Earthjustice April 28 against delisting is pending.

“As a result of (the July 19) injunction, wolves can no longer be taken any where in Wyoming except in cases where wolves are in the act of attacking livestock,” said G&F spokesman Eric Keszler.“Ranchers who are experiencing livestock depredation problems anywhere in the state should contact their local Wyoming Game and Fish office.”

“Disappointed but not unexpected,” said FWS Gray Wolf Recovery Coordinator Ed Bangs of the ruling. “Courts tend to rule with an abundance of caution in favor of (Endangered Species Act) issues – since the court hadn’t really seen the full administrative record, we hope this can all be cleared up with a more thorough review of the facts. We are weighing all of our legal options and the quickest way to get the whole delisting issue resolved.”

Wolves in the northern Rocky Mountains were removed from the Endangered Species List March 28, 2008. A number of environmental groups represented by Earthjustice are challenging the FWS delisting decision.

Judge’s decision

U.S.DistrictCourt Judge Donald Molloy, silent for more than a month after the May 29 hearing in which he heard both sides of the argument, issued his 40-page decision based on his finding “plaintiffs are likely to succeed on the majority of the claims relied upon in their request for a preliminary injunction.”

“We just got a ruling from Judge Molloy granting a preliminary injunction against delisting, and reinstating ESA protections for wolves throughout the northern Rockies,” Earthjustice attorney Jenny Harbine said Friday.

“This means that the 10j rule is again operative. Our lawsuit challenging the 2008 revisions to the 10j rule is still pending,” she added Monday.

“Because Wyoming now has an approved (management)plan the more liberal 2005 and 2008 versions (of the 10j rule) go into effect,” confirmed Bangs.

Molloy was scathing in his review of Wyoming’s wolf management plan and the FWS’ acceptance of that 2007 plan despite finding fault with the state’s original plan that Molloy said lacked wolf protections.

“In particular,(1) the (FWS) 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 2007 plan despite the State’s failure to commit to managing for 15 breeding pairs and the plan’s malleable trophy game area,” Molloy wrote.

The judge focused heavily on Wyoming’s wolf management plan in explaining his decision to impose the injunction, saying FWS “compromised its earlier thinking and accepted less than statewide trophy game designation for the wolf...”

“Under state management, wolves in Wyoming were classified as Trophy Game animals in the northwest corner of the state and Predatory animals in the rest of the state,” Keszler said. “In the Trophy Game area, wolves could only be taken by hunters with a wolf hunting license during an open season or by ranchers who had been issued a lethal take permit by the Game and Fish. In the Predatory Animal area, wolves could be taken by anyone at anytime.”

FWS, Molloy also stated, tried to justify its “change of course” in accepting less than statewide trophy designation by saying “the area designated as predatory in the 2007 plan is mostly unsuitable wolf habitat and Wyoming could maintain its share of the wolf population in the trophy game area alone.” “This reasoning is an unexplained surrender of the agency’s rational rejection of the 2003 plan,” he wrote.

Molloy said the state’s plan does not guarantee 15 breeding pairs within the state because it relies on the national parks maintaining at least eight while “the Wyoming Fish and Wildlife Commission (sic)” will ensure only seven rather than 15 necessary to meet FWS’ delisting requirements.

He called FWS approval of the 2007 state plan with a “malleable nature of the trophy game area ... even more problematic. This aspect of the Wyoming plan presents a metaphorical moving target.”

State laws

Before Wyoming would accept management after wolf delisting, th eFWS revised its special “10j rule” of the Endangered Species Act guiding removal of problem or nuisance wolves.

While Idaho and Montana have state depredation control laws, those laws are similar enough to the FWS 10j rule to “not threaten the continued existence of the experimental wolf population,” Molloy wrote in his decision last week. “Wyoming’s depredation control is more problematic,” he wrote. “It permits the killing of wolves ‘doing damage to private property.’ It reaches wolves that are, in someone’s subjective view, damaging property.”

He also faulted FWS for not adhering to its earlier standard that genetic exchange needed to take place among subpopulations “for long-term viability.”

“Genetic exchange has not yet taken place,” Molloy said. “...The reduction in the wolf population that will occur as a result of public wolf hunts and state depredation control laws in Idaho, Montana and Wyoming is more than likely to eliminate any chance for genetic exchange to occur between subpopulations. Genetic exchange that has not taken place between larger subpopulations under ESA protections is not likely to occur with fewer wolves under state management.”

In the meantime

Wyoming’s proposed wolf hunting season of the trophy-game area is expected before the Wyoming Game and Fish Commission for a decision at its July 29-30 meeting in Dubois. Public comments were taken through July 3 on this issue, which brought out very small crowds to G&F informational public meetings held this spring on proposed hunting season revisions and additions.

Also, Wyoming G&F and FWS are drafting a Memorandum of Agreement (MOA) to cooperatively manage wolves in Wyoming until a court decision is reached on delisting, Keszler said Friday. “Under this agreement, the department will likely remain active in monitoring, conflict resolution and law enforcement activities related to wolves in the state under the authority of the (FWS),” he said. “Under the proposed MOA, the departmentwill be active in wolf management only in the Trophy Game area.”

Recently hired G&F wolf director Mike Jimenez and three full-time specialists will continue with their duties. The G&F weekly wolf report for July 11-19 states, “Department personnel are conducting routine summer trapping and radio collaring in the following areas:

“Wolf Management Specialist Ken Mills is trapping and collaring in the upper Green River drainage. Wolf Management Specialist Bob Trebelcock is trapping and collaring in the Sheridan Creek drainage near Togwotee Pass. Wolf Management Specialist Scott Becker is trapping and collaring in the South Fork and Greybull River areas.” One wolf kill is listed in the G&F weekly report: “In the Predatory Animal area, USDA-Wildlife Services removed one adult male wolf in the upperHoback Drainage in response to domestic sheep depredations.”