Please see, “The “Deal”, Part II: The Only Provisions To Alter Experimental Wolf Populations”

50 CFR Part 17 – Final rule: Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana. This is the “Deal”.

It is an understatement to say that during discussions of whether or not to reintroduce gray wolves to Yellowstone National Park (YNP) and Central Idaho, there was lots of controversy and deep concerns. Let’s examine very briefly events that led up to gray wolf reintroduction.

In 1982 Congress made amendments to the Endangered Species Act (ESA) which included Section 10(j). 10(j) made provisions to allow the Secretary of Interior to establish areas of “experimental” populations of species.

In 1987 the Northern Rocky Mountain Wolf Recovery Plan was adopted. After many meetings, planning and public comment periods, the Final Environmental Impact Statement on the reintroduction of gray wolves into Yellowstone National Park (YNP) and Central Idaho was established in May of 1994.

Most everything was in place except that there remained still opposition and concerns over the impact that reintroduced and established gray wolves would have on private land owners, ranchers and the citizenry in general. This is where the “Deal” comes into play.

The “Deal” was a Final Rule written by Ed Bangs that laid out the rules specifically as to how reintroduction of wolves would take place, where and what recourse citizens and landowners would have in dealing with problem wolves. The “Deal” is long and complicated and I’ll cover that in future parts.

What is most important about this Final Rule, 50 CFR Part 17, is that without it, there would be no gray wolf reintroduction. You may want to read that again. It was established as a means of assuring the people of Idaho, Wyoming and Montana that with Section 10(j) of the ESA and the designation of wolves within prescribed areas as “nonessential experimental” flexibilities outside the strict protection guidelines of the ESA, to control and limit depredations by wolves and other issues, would be implemented.

It is vitally important to read and understand the language of the “Deal” and it’s intent. Therefore, it is of the utmost importance to recognize that as the rules of the “Deal” were established, any designation of nonessential experimental does not apply strictly to the species so designated. Where gray wolves were being reintroduced, the nonessential experimental classification was not given strictly to wolves but to wolves WITHIN a prescribed area.

The release site for reintroducing wolves will be in Yellowstone National Park. The designated experimental population area will include the State of Wyoming; that portion of Idaho east of Interstate Highway 15; and the State of Montana east of Interstate Highway 15 and south of the Missouri River east of Great Falls, Montana, to the Montana/North Dakota border.

And the reason these prescribed areas are given nonessential experimental flexibility is spelled out often in the “Deal”.

It is anticipated that released wolves will come into contact with humans and domestic animals inside and outside of the Park. Public opinion surveys, public comments on wolf management planning, and the positions taken by elected local, State, and Federal government officials indicate that wolves should not be reintroduced without assurances that current uses of public and private lands will not be disrupted by wolf recovery activities.

As you have seen, the “Deal” creates boundaries that within those limits gray wolves are classified as nonessential experimental. As stated, this status allows managers the greater leniency to deal with troublesome wolves where managing under the restrictions of the ESA in general would not provide. It is intended to limit as much as feasible, negative involvement between people and wolves.

Another extremely important explanation provided in the “Deal” is the one that involves how to designate wolves that wander in and out of the experimental areas.

It is possible that prior to 2002, other wolves may appear in the wild and be attracted to the experimental area occupied by the reintroduced wolves. Any “new” arrivals would be classified as part of the experimental population. These wolves could assist in the recovery and expansion of the experimental population to where wolves could be dispersing into central Idaho and Montana. Wolves dispersing into areas in Idaho and Montana, outside of the experimental area, would continue to receive endangered species protection under the Act, as did the wolves that recolonized an area near Glacier National Park in 1982.

This recognition of the possibility of non reintroduced wolves moving into experimental zones and reintroduced wolves moving out of them, further reinforces the notion that the purpose of the ESA Section 10(j) is not demanding a nonessential experimental label on wolves as a whole but on those within the prescribed zone, regardless of how they got there. Is it not insane to consider that anyone could designate a species experimental and nonessential without providing physical boundaries of limitations of such? It was supposed that once wolves were moving freely between experimental zones the species would be recovered.

Recently Judge Donald Molloy, a district judge from Missoula, Montana, attempted to weasel his way into ruling that the nonessential experimental designation of wolves in the Northern Rocky Mountain area be eliminated. In short, it is my opinion that he carries no authority in which to do that without violating the ESA and the Final Rule known as the “Deal”.

In Defenders of Wildlife v. Rowan Gould, USFWS, Judge Molloy completely misunderstands the intent of Section 10(j) by only focusing on the wolves themselves. As I’ve demonstrated above, the purpose of nonessential experimental is to provide more flexible management within a prescribed area, not necessarily on how to deal with wolves in general.

Judge Molloy in his ruling states that he is of the mind that gray wolves in the Northern Rockies should lose their experimental status because of genetic diversity and the fact that the original reintroduced wolves are all now dead.

Additionally, whether the offspring of the wolves of the northern Rocky Mountains have arisen solely from the original released wolves has not been addressed. The wolves released in 1994 have since died. See 74 Fed. Reg. 15, 123 (noting wolves can live 13 years but average less than 4 years in the DPS). Representations made to this court indicate that genetic exchange with nonexperimental populations has occurred in the DPS both naturally and through human-assisted migration management.

When you have determined yourself to see that nonessential experimental applies only to the status of wolves and not the entire management process and intent of the guaranteed assurances from the “Deal”, Molloy’s argument might be somewhat convincing but still lame at best. To assume that because the original reintroduced gray wolves are now dead, abolishes the entire nonessential experimental purpose is no different than someone claiming I’m not American because all the Founding Fathers are now dead.

I realize that Judge Molloy is hiding behind some cherry-picked scientific mumbo-jumbo in order to somehow employ the notion of having fulfilled the statutory definition of nonessential experimental but in doing so he misses the most important part of this entire mess he has helped to create. The needs of the people and the intent of the rules.

Molly thus instructed both sides in the lawsuit to come back to his court on February 22 and convince him that wolves should or should not retain their nonessential experimental status in the Northern Rockies. For what purpose? Is he setting himself up to succeed in keeping wolves delisted regardless of how he is influenced by the two sides? If he is convinced that eliminating experimental status is the right choice, then if he remains consistent to his previous rulings that you cannot delist wolves with the utilization of boundaries then I would suppose there is no end to the madness. If he runs with keeping the nonessential experimental designation, will he then claim that wolves are not recovered yet for that very lame reason? In his court, most anything could happen.

As I pointed out yesterday, it is questioned as to whether or not Judge Molloy even has jurisdiction to rule on this case because part of his previous ruling on wolves that returned them to the Endangered Species List is under appeal in the 9th Circuit [edited to 9th from 10th].

Regardless of what Judge Molloy thinks about whether those wolves should retain experimental status, it is, once again, my opinion that he does not have legal authority to do that as it is spelled out in the “Deal”.

Federal responsibility for protecting gray wolves under the experimental population provisions of the Act would continue until formal delisting rulemaking procedures are completed. (my emphasis)

I think that is very clear as to when this designation will change and it is not up to Judge Molloy to alter it. It is quite apparent that the exact purpose of nonessential experimental designation as it pertains to the reintroduction of gray wolves in Yellowstone and Central Idaho, under the Final Rule of wolf reintroduction written by Ed Bangs, is to provide the promised management flexibility to deal with problem wolves that the people of Idaho, Wyoming and Montana worried about from the very beginning. It was part of their contractual assurances.

Therefore, it is my humble opinion that Judge Molloy is left with only one recourse; allow for the delisting of gray wolves in the Northern Rockies. Anything short of that can only be construed as standing in the way of justice.

Tom Remington

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