FWS Does About-Face On Wolf Suit
Asks court to repeal delisting rule
by Joy Ufford

On Sept. 22, attorneys for the U.S. Fish and Wildlife Service asked the judge in a lawsuit against gray wolf delisting to repeal the FWS’ Feb. 28 delisting rule that took Rocky Mountain wolves off the Endangered Species List and under states’ control a month later.

The motion came a surprise to many and is a victory by the conservation groups arguing the Northern Rockies’ wolf population isn’t fully recovered. Represented by Earthjustice attorneys, they sought to have the wolves relisted as an endangered species.

Now their wish has come true with barely a battle yet fought in Missoula, Montana’s U.S. District Court with Judge Donald Molloy presiding.

Wyoming Game & Fish, managing the state’s wolves under an FWS-approved plan between March 28 and July 18 when Judge Molloy issued an injunction against delisting, was blind-sided as were others in the state.

“We heard about it in the media,” confirmed Eric Keszler, G&F spokesman, this week.

He said there hasn’t been much further conversation between the federal FWS and state G&F at this point to provide direction.

“None that I know of, except to confirm what we were hearing in the media about the USFWS actions related to retracting their delisting decision,” Keszler said.

Gov. Dave Freudenthal also expressed frustration after reading an article last week stating FWS planned to file the motion to repeal delisting in Judge Molloy’s court.

“It’s one of those things where you get into this and the federal government says ‘We’re right behind you,’ and you turn around and they may be behind us, but I can’t quite see them,” he said last Wednesday. “We’re in a position where, frankly, the stuff we saw in the paper ... from (FWS gray wolf recovery coordinator) Ed Bangs is the firmest statement we’ve seen from (the Department of) Interior thus far.”

Bangs was unavailable for comment this week. FWS Wyoming coordinator Mike Jimenez referred requests for comment to the Department of Justice and the Denver FWS office.

“That’s an internal discussion and we never comment on things like that,” said Andrew Ames, spokesman for the Department of Justice, representing FWS and the Interior Department in the suit, when asked why FWS decided to reverse its delisting decision.

The motion

The motion asks the judge to remand and vacate the FWS Final Rule removing wolves from its endangered species list and “return the northern Rocky Mountain gray wolves to the status quo before the Final Rule went into effect.”

“USFWS intends to conduct further rulemaking and render new determinations regarding the appropriate designation and status of gray wolves in the northern Rocky Mountains.”

The motion states “plaintiffs do not oppose the motion” and that defendant intervenors State of Montana and Montana Department of Fish, Wildlife and Parks support the motion.”

“State of Wyoming takes no position on the motion until it has an opportunity to review the filing,” the motion adds.

That stance was also given for several Wyoming and Montana agricultural, hunting and wildlife associations. Other defendant-intervenors either simply took no position – Idaho officials and agencies, Safari Club International, National Rifle Association and Sportsmen for Fish and Wildlife.

The supporting memorandum states the motion was requested because Judge Molloy’s preliminary injunction in favor of the plaintiffs showed their suit was “likely to prevail” on claims the wolves weren’t a recovered species because there was a lack of proven genetic exchange among populations, that Wyoming’s 2007 state plan was “inadequate” and planned fall 2008 hunts would cause “immediate potential harm.”

“If plaintiffs are satisfied with the agency’s new decision, it may obviate the need for further litigation,” the memo states. “If plaintiffs are dissatisfied after remand, they may renew their challenges at that time. Proceeding now will not result in meaningful judicial review.”

The voluntary remand results in the same goal the plaintiffs sought in filing suit against FWS, the motion added, “but conserves the resources of both parties and this Court.”

“Indeed, plaintiffs will have achieved what their complaint requested – that the Final Rule be set aside and that (Endangered Species Act) protections be reinstated for gray wolves in the northern RockyMountains.”

Victory or defeat?

“The government’s motion asks thecourt to allow it to withdraw the wolf

delisting rule,” said Jenny Harbine, Earthjustice attorney on the case. “The decision gives the conservation groups who challenged the delisting the remedy they sought; it reinstates Endangered Species Act protects for wolves.”

With Wyoming, Idaho and Montana wielding federally approved – and now basically useless – state wolf management plans, it isn’t clear what comes next for them.

Freudenthal said it remains unclear how the Interior Department, which hadn’t communicated with the states before filing the motion, will manage gray wolves going forward.

“It’s difficult to work in a partnership with a federal government that can change directions as quickly as these folks do,” he said last week. “There’s clearly a signal that they’ve changed direction, but as for what the new direction is, we don’t know yet.”

As yet, Wyoming G&F officials aren’t sure which way to turn either.

“Wyoming’s plan was officially accepted by the USFWS in Fall 2007,” said Keszler Tuesday. “We have not heard anything further on the status of Wyoming’s plan.”

Even U.S. Sen. John Barrasso (R-Wyo) fired off a response this week. “Wyoming honored its commitments in the managing the wolves,” he said. “Our state met the recovery goals set by the U.S. Fish and Wildlife Service, and had pledged to maintain wolf populations. Agricultural producers and sportsmen have every reason to feel double crossed by Washington... The U.S. Fish and Wildlife Service has an obligation to fight for Wyoming, and not back down in the face of lawsuits from environmental special interests.”

Harbine acknowledged FWS “faces pressure from the states to delist wolves.”

“We hope that the decision to withdraw the delisting rule signals a change in priorities to respond to the biological needs of wolves instead of political pressure. ... Earthjustice and our clients will remain vigilant to ensure that wolves are fully recovered and a legal safety net to protect wolves is in place before any future delisting takes place. This means that wolves must be genetically healthy and Wyoming lawmust be changed to be protective of wolves.”

What’s next?

No one on either side seems to know when Judge Molloy will rule on the motion.

“We’re just waiting for the judge to sign the order,” saidAmes. “It’s in his ball park now.”

Keszler said he “didn’t know” what Wyoming will do to in another attempt at wolf delisting and state management.

“(It’s) unclear at this time.” Earthjustice also has a case pending in the same courtroom with JudgeMolloy, on the 10(j) Rule guiding states’ actions toward wolf control.

“The challenge to the 10(j) rule is moving forward,” Harbine said, adding, “At this point, the rule applies to Yellowstone and central Idaho wolf populations in Wyoming, Idaho and Montana.”