The news accounts and debates and discussions contain all the same worn out drivel about man’s encroachment on animals, animals being animals, people needing to assume a certain amount of risk, and let’s never forget the famous words that ALWAYS follow such attacks, “it is very unusual for a mountain lion to attack someone”. Park spokesman David Elkowitz who made that statement actually said, “it is very unusual for a mountain lion to attack someone so close to a building”. Does that mean that had they been a few feet further from the buildings such attacks are normal and readily acceptable?

No matter what we as humans do in life, we assume certain risks; some to extremes and others in which we hope all sensible precautions have been taken to limit that risk. The question, of which will never be answered in this case is, were all the sensible precautions taken?

There are the obvious ones as to how much was done, especially knowing that the same day a mountain lion had been chased away from a seeming potential attack on hikers nearby. I will leave that debate up to the usual roster of “he saids and she saids”.

Consider if you will the notion that this mountain lion attacked the kid because it was hungry. The same park spokesman, Mr. Elkowitz, said in the newspaper account, “attacks are most common by older and younger lions, who both struggle to find food”. While this statement standing all alone I suppose contains a certain amount of truth, one has to wonder if there are reasons beyond the scope of most human knowledge that unnecessarily leads predators like this to attack people outside of those “very unusual” times, whatever that exactly means? In short, is there something that could have been done to prevent this from happening?

Let me try to explain. If I am to take off into the forests and fields for perhaps no other reason than to “get away from it all”, obviously I am taking on myriad risks on nearly every plane of danger. In staying in context with this discussion, I am bound to run into an assortment of wild animals, including predators, some of which could become life threatening. In such a case, I should be prepared as best I can, while having knowledge and understanding of the risks.

On the other extreme, if I’m not all that interested in assuming those kinds of risks, I’ll go to the zoo and see animals, where, at least from the zoos I’ve attended, the risks are greater some tourist will pick my pockets than me getting injured by an attacking animal.

And then we have the quasi zoos or the quasi forests and fields, where people can pretend they are in the wild while at the same time getting a transmuted zoo experience. We’ve decided to call them parks. Part of the problem with these parks is that the wildlife is allowed to “naturally regulate”. Combine that with the fact that there is demand from the ticket buyers to see animals and have a “wilderness experience”.

This social demand to “view” wildlife, has now crept into our state and federal wildlife management organizations, not just relegated to parks, and as such, we are protecting too many species, particularly predators, and allowing for too many of them, the results of which we are now just beginning to see. I would challenge anyone to find a time in history in which this country had more wildlife than it does now.

At one time, fish and game departments created plans to manage wildlife based on a successful North American model. This model involved hunting the animals. The development of those plans were based on many things, including the ability of a particular forest to handle a certain capacity of certain species and concerns for public safety for such things as human encounters, including automobile accidents, etc.. Missing from those older management plans was what needed to be done to manage for wildlife viewing by residents and tourists alike.

With such an unscientific, emotion-based, selfish and irrational demand to grow more animals for people to see from their automobiles, we have upped the anti on assumed risk and I contend we fail to recognize or have knowledge of this increase.

I certainly am not trying to convince readers that Rivers Hobbs would not have been attacked by a mountain lion on a sidewalk in a national park if there was hunting of mountain lions allowed in the park,. What I am asking is whether there are simply too many lions in this particular park and are we working so hard to grow wildlife everywhere, for those too lazy to get out of their cars and into the field, that we have unwittingly brought on this kind of danger? And are we ill-prepared to deal with it?

Tom Remington

hiring a biologist to focus on human-wildlife conflict, training more trappers, providing a pelt incentive and increasing education about dealing with the animals.

Meanwhile, in Saginaw, Texas, a 3-year old was attacked and knocked down by a coyote in the family’s driveway. Get the details of the event here.

What is being described as “extremely rare” and not “normal”, blame is laid on drought and human encroachment as the problem for increased reports of coyote/human interaction. While drought, which can cause a reduction in food supply, and human encroachment play a role, I’m not sure that describing the action of these coyotes as not being “normal” is all that accurate and may, in fact, lead people to be less concerned with educating themselves about what is normal.

People, including officials, need to better educate themselves on behavior traits and all the aspects of what influences in a coyote’s environment causes behavior to stray outside of what we want to call “normal”.

Dr. Valerius Geist, some time ago, provided us with the steps wild canines will take that lead up an attack on a human. This behavior is actually quite normal. It’s the progression of events that influence the behavior of the animal that we should all be aware of. According to Geist, drought and human encroachment in and of itself will not cause coyotes to attack.

Once we all better understand and become familiar with behavior and the influencing factors, the sooner we can recognize why coyotes and other wild canines do what they do. From this we can be better prepared, which will result in increased public safety.

www.youtube.com/watch?v=r4IbOvbFOvk

In Texas, RMEF grants totaling $31,625 will affect Austin, Burleson, Fayette, Harris, Kaufman, Kerr, Lee, Madison, Potter, Victoria, Washington and Williamson counties.

Three additional projects have statewide interest.

For 2010, Texas also is funding RMEF habitat conservation and enhancement projects, primarily in the Mountain West, with grants totaling $126,012.

“All of this funding is possible because of the successful banquets and fundraisers staged over the past year by our Texas volunteers; most of whom are elk hunters as well as devoted conservationists,” said David Allen, RMEF president and CEO. “Since 1984, RMEF grants in Texas have helped complete 84 different projects with a combined value of more than $1.3 million and the state’s continuing influence on elk and habitat conservation nationwide also is significant and impressive.”

RMEF grants will help fund the following Texas projects, listed by county:

Burleson County – Sponsor 4-H Shooting Sports 2010 to introduce young people to conservation and outdoor recreation.

Harris County – Sponsor Houston Safari Club 2010 Hunter Education Program to help teach firearm safety and hunting ethics.

Kaufman County – Sponsor Hidden Acres Archery Program to introduce young people to conservation and outdoor recreation.

Kerr County – Sponsor Texas Youth Hunting Program’s “2010 Leadership and the Outdoors Camp” to introduce young people to conservation and outdoor recreation; sponsor Troy Smith Ranch 2010-11 hunts for wounded military.

Lee County – Sponsor 2010 Youth Shooting Event to introduce young people to conservation and outdoor recreation (also affects Washington and Fayette counties).

Madison County – Sponsor Madison County 4-H Shotgun Club to introduce young people to conservation and outdoor recreation.

Potter County – Sponsor Potter County Boy Scouts of America/4-H Shotgun Shooters Club to introduce young people to conservation and outdoor recreation.

Statewide – Sponsor Texas 2010 National Archery in the Schools Program to introduce young people to conservation and outdoor recreation; sponsor Texas 2010 Youth Hunter Program; sponsor the Texas 2010 Elk Calling Contest at the Cabela’s store in Buda, Texas.

Victoria County – Sponsor Victoria County hunter education laser shot simulator to help teach firearm safety and hunting ethics; sponsor 4-H Shooting Stars Archery for 2010.

Washington County – Sponsor Washington County Youth Shooting Club to introduce young people to conservation and outdoor recreation (also affects Austin County).

Williamson County – Sponsor Texas Hill Country 2010 3-D Archery Shoot to introduce young people and their families to conservation and outdoor recreation.

Projects are selected for grants by a committee of RMEF volunteers and staff in Texas.

Partners for 2010 projects in Texas include the Texas Parks and Wildlife Department, many local civic and sportsmen clubs, conservation organizations and others.

“We have had some delay in our investigation of the incidents alleged in the complaint which you kindly forwarded to us,” Judge Burkeen wrote in his investigation report to TCEQ. “The problem is, we have recently had a rash of reports of cows, horses, sheep and goats defecating at will in pastures throughout the county.”

And it even gets better or more bizarre if you can imagine.

Tom Remington

After months of pressure from environmental groups, Center for Biological Diversity, Defenders of Wildlife and Preserving the Rights of Hyenas, the USFWS buckled and proceeded with the listing. The three environmental groups claim they have unearthed some mysterious scientific evidence that unquestionably proves that if hyenas were introduced into these regions, they might survive. It would require removing all ranch land and the bulldozing of several towns.

Hyenas have never inhabited these regions of the United States but the groups feel, and now the Obama Administration is convinced, that there is an outside possibility that if they had of inhabited these regions and if they were there today, they just might survive. It is for those reasons the USFWS has administered the Endangered Species Act to help save the hyena.

Barack Obama stated this weekend while touring about the U.S. trying to find something the American people might believe him about, that when he said he would bring science back to its rightful place, this is precisely what he had in mind.

“Let me make myself clear. America has turned a corner. And I want to say that with the help of such qualified, honest and outstanding scientists as Al Gore, Michael Mann and Phil Jones and Michael Moore, I am convinced that ranchers and citizens in Texas, Kansas, New Mexico and Arizona have no need to prosper and protect their private property. And I want to say, they have too many livestock now and it is time they shared a little of their wealth. Let me make myself clear, again. The hyenas, if they ever find their way from northern Africa to this region, will be granted unprecedented protection and be allowed to ravage any and all livestock and other wildlife species in those regions. We are finally returning science to its rightful place. And one more thing. I just want to say, I will appoint a hyena protection czar.”

For those of you who have chosen to read this far, I hope you have been intelligent enough to realize this is nothing but an outrageous and ridiculous story. It is however not that far from the truth. Take for example this New York Times editorial one of my readers was kind enough to send me the link to.

It seems that the U.S. Fish and Wildlife Service, under pressure from the Center for Biological Diversity and Defenders of Wildlife, has opted to designate the jaguar as an endangered species in the United States and has designated critical habitat in parts of the region along the United States and Mexico border. No jaguars live in this region but if the habitat could support jaguars they might.

In prehistoric times, these beautiful cats inhabited significant areas of the western United States, but in the past 100 years, there have been few, if any, resident breeding populations here. The last time a female jaguar with a cub was sighted in this country was in the early 1900s.

But somehow magically after repeated lawsuits from the federally funded environmental groups, the feds have “evaluated new scientific information” and opted to designate critical habitat.

This is nearly as absurd as my hyena story and it’s really only about one step away from reality. Once an environmental group or groups can pester the USFWS with lawsuits and “evaluated new scientific information”, it wouldn’t be surprising to learn that striped hyenas once roamed parts of the United States. With the continued abuse that has been allowed of the Endangered Species Act, we have learned that a species doesn’t have to be extinct, only missing from U.S. territory. Whether present climate and habitat can support these species anymore is irrelevant.

Actions by environmental groups and decisions being made by the USFWS on such issues has to be brought in check. If not, we just may be designating parts of the U.S. critical habitat for more things than just hyenas.

Tom Remington

Ohio’s bill, HB315 states:

To enact section 2923.26 of the Revised Code to provide that ammunition, firearms, and firearm accessories that are manufactured and remain in Ohio are not subject to federal laws and regulations derived under Congress’ authority to regulate interstate commerce and to require the words “Made in Ohio” be stamped on a central metallic part of any firearm manufactured and sold in Ohio.

According to Gary Marbut, President of the Montana Shooting Sports Association, Ohio now joins with eight other states who have either passed or introduced a cloned version of Montana’s bill – Texas, which has passed a bill, Alaska, Texas, Florida, South Carolina, Minnesota, Michigan and Pennsylvania. Other states are working on them.

Marbut says that with more states passing and introducing similar legislation, this should help Montana in their litigation efforts in validating the Montana Firearms Freedom Act bill. A court hearing has been scheduled for later this year in which the state of Montana hopes to get a ruling that states have this right as stated in the Constitution.

Tom Remington

“The Service has distinguished a natural population of wolves based on a political line, not the best available science,” Molloy wrote. “That, by definition, seems arbitrary and capricious.”

To Judge Molloy and others, that may well appear “arbitrary and capricious” only because they are entrenched in the politics of the gray wolf issue and are perhaps refusing to take the entire ESA into account with its scientific intent to conserve and protect species…….all of them.

The ESA, like most bills constructed in Congress are long and complicated. When lawyers get into the act, intent of laws sometimes get muddled and lost. The intent of the ESA is to preserve and protect species from becoming extinct to what is considered practicable. I contend the Act gives the Secretary of Interior the flexibility to do what is in the best interest of protecting species. Again, I reiterate that in all discussions of protecting species, consideration has to be given to all species. It is “arbitrary and capricious” to endanger one or more species while utilizing the ESA as a heavy-handed weapon to achieve personal agendas – in this case, protection of the wolf at all costs.

There is argument to make that excluding Wyoming is “arbitrary and capricious” if one is focused on politics. I don’t recall anywhere in the 47 pages of the ESA where it factors in politics. It speaks mostly in reference to the best science and information available at the time decisions are made. Sometimes protecting species requires the isolation of political problems.

Excluding the politics, doesn’t it then become in the best interest of the people and the other wildlife species that state fish and wildlife officials have determined are in danger in certain areas because of the wolf, to remove the protection of the ESA in order to protect and preserve all the species? Wyoming is excluded because of politics and that issue needs to be solved separately.

The question still remains, at least according to Judge Molloy, is whether the USFWS has the authority to exclude Wyoming from the Northern Rocky Mountains population of gray wolves delisting? The Secretary within the Act has been given the authority to protect species and past history has shown us that it is a common practice for the USFWS to create certain “Distinct Population Segments” or DPS.

The courts seem to be hung up on the issue that the ESA says very little about DPS. From that it seems they deem the action illegal. The only reference within the Act about DPS is this:

(16) The term ‘‘species’’ includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

The Act itself proposes that we set up programs to protect a species from going extinct. To make that determination, the Act also sets up guidelines that must be met before a species can be considered for an endangered or threatened listing.

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.

In 1978 the United States decided to declare the gray wolf an endangered species in all the lower 48 states with the exception of Minnesota – gray wolves there were listed as “threatened”. Because of previous court rulings, one has to question whether the USFWS had the authority to list wolves in the lower 48. More on that in a bit.

In 1994, the USFWS created the Yellowstone Non Essential Experimental Population (NEP) of gray wolves. It’s intent was to bring wolves back to the park. A NEP listing, according to the ESA, is such that it is considered not essential to the protection of the species but with a goal that it could one day be recovered and delisted. In NEP areas critical habitat is not designated. Another criterion of the establishment of a NEP is that it must be isolated from an existing species of the same.

(j) EXPERIMENTAL POPULATIONS.—(1) For purposes of this subsection, the term ‘‘experimental population’’ means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.

Argument has been made that the creation and expansion of the Northern Rocky Mountain wolf population, all declared NEPs, was illegal as known populations of gray wolves existed in Northwestern Montana and portions of Idaho. (Another story)

In 1998 another NEP was designation in portions of Arizona, New Mexico, Texas and into Mexico. By April of 2000, the USFWS set up three Distinct Population Segments for administering the ESA and protecting wolves.

Those DPS did not last long. In 2005 in National Wildlife Federation, et. al v. Department of Interior, Judge J. Garvan Murtha ruled the creation of the three DPS in violation of the ESA.

In February, 2008, the USFWS created the Western Great Lakes DPS and set out to delist the wolf in this region.

In February 2008, the USFWS designated the Northern Rocky Mountains DPS and set out to delist the wolf in that region.

July 2008, Judge Donold Molloy rules against the removal of the gray wolf from endangered protection. Molloy’s ruling was for an emergency injunction. The full case brought against the USFWS was never heard as the USFWS withdrew its plan to delist the wolf. It was later revived.

In July 2008, Judge Paul Friedman, in a Federal Court in Washington, D.C. ruled that the USFWS did not have legal authority to create the Western Great Lakes DPS for the purpose of delisting the wolf. In his opinion he stated that this was in violation of the ESA, the same as Murtha’s ruling but using different reasons.

And most recently, the same Judge Molloy, ruled against the injunction and indicated that in the upcoming lawsuit of Defenders of Wildlife v. USFWS, the plaintiff’s claim that it is a violation of ESA to exclude Wyoming, may have merit.

We now have two judges who have ruled that creating DPSs are a violation of the ESA and a third considering such. What’s interesting is the Murtha ruling is based on the “DPS Policy” used by the National Marine Fisheries as reason to declare the creation of a DPS in violation of the ESA.

Friedman, on the other hand, remanded the case back to the USFWS (an unusual move) in order that they provide him with a clearer definition of a DPS.

What will Molloy use? Rulings are all over the place with neither of the two previous rulings citing the other. It really appears more like a case of ruling against a DPS because they wanted to than a finding of law violation.

Politics aside, science and evidence are telling us some of our other wildlife are suffering as a result of too many wolves in certain locations. State borders should have nothing to do with this. States manage their wildlife according to zones or districts. It has become the best available scientific method to do so and provides for better management broken down into smaller more manageable areas. This same principle should apply to the management of wolves throughout the entire NRM range.

To declare that carving Wyoming out of the picture as being “arbitrary and capricious” is showing one’s ignorance of the best wildlife management practices. The statement itself is political. As I said, the reason Wyoming is excluded is political. That problem needs to be resolved separately. In the meantime, wolves and all other wildlife species need to be managed. Delaying that process is irresponsible and is in itself a violation of the ESA.

This entire debate has become nauseating and a waste of time and money. Molloy has through his ruling, admitted that there are plenty of wolves and killing a few isn’t going to hurt anything. If he is to claim he must rule by the law, then be the first judge to actually rule using something substantial found in the ESA. Judges are supposed to interpret the meaning and intent of laws and rule accordingly. The ESA did not intend for wolves to run amok throughout Idaho, Wyoming and Montana, destroying other species putting them at risk and in need of protection from the same ESA. That’s ridiculous.

Tom Remington

Montana’s HB246 is the talk of the states it seems these days. It didn’t take too long I suppose but with each passing day, more media, not the main stream though, and new Internet media are picking up on the brazen and testy new gun law bill that Montana signed into law last month. I first brought you that story right here on the Black Bear Blog.

I’ll dispense with all the proper speak and get to the nitty gritty of the bill. Montana’s HB246 says that any guns or gun parts manufactured in the state of Montana and sold exclusively in the state of Montana cannot be regulated by the federal government.

Back on April 20, 2009 I made this comment.

While several states are calling for legislation that reaffirms their state sovereignty in opposition to a federal government that is out of control, Montana, it appears, has taken this step a little bit further. No one knows how this will play out in the courts as it is sure to be challenged.

We know that many states now have taken some degree of assertiveness, if only to make a statement in protest of too much governmental control. Montana seems to be the first to draw a big and bold line in the sand, while at the same time dropping a grenade into the court (figuratively speaking) of the U.S. Government.

The Global News Post describes Montana’s bold move this way.

Montana has gone beyond drawing a line in the sand. They have challenged the Federal Government. The fed now either takes them on and risks them saying the federal agents have no right to violate their state gun laws and arrest the federal agents that try to enforce the federal firearms acts. This will be a world-class event to watch.

Montana could go to voting for secession from the union, which is really throwing the gauntlet in Obama’s face. If the federal government does nothing they lose face. Gotta love it.

Speaking of secession, if you will recall back during the U.S. Supreme Court case of District of Columbia vs. Heller, the state of Montana was hinting that should the Supreme Court rule against an individual’s right to keep and bear arms as an interpretation of the Second Amendment, then the U.S. Government would be in breech of the contract Montana had with the U.S. Government when it agreed to join the union. Some legal authorities believe that Montana has that “ace up the sleeve” while other states don’t.

Which brings me to an additional point in this discussion. Since Gov. Schweitzer signed Montana’s bill, at least two other states, Alaska and Texas, have drafted similar bills.

Gary Marbut, President of the Montana Shooting Sports Association, says he’s not really sure how all this would play out in court. As a matter of fact, Marbut says the MSSA is looking into the possibility of taking a proactive approach and filing a suit in court in order to prove the legal principles within HB246.

Tom Remington

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) are issuing this final rule to comply with three court orders which have the effect of reinstating the regulatory protections under the Endangered Species Act of 1973, as amended (ESA), for the gray wolf (Canis lupus) in the western Great Lakes and the northern Rocky Mountains. This rule corrects the gray wolf listing at 50 CFR 17.11 to reinstate the listing of wolves in all of Wisconsin and Michigan, the eastern half of North
Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, the northwestern portion of Ohio, the northern half of Montana, the northern panhandle of Idaho, the eastern third of Washington and Oregon, and in north-central Utah as endangered, and reinstate the listing of wolves in Minnesota as threatened. This rule also reinstates the former designated critical habitat in 50 CFR 17.95(a) for gray wolves in Minnesota and Michigan, special regulations in 50 CFR 17.40(d) for the gray wolf in Minnesota, and special rules in 50 CFR 17.84 designating the gray wolf in the remainder of Montana and Idaho and all of Wyoming as nonessential experimental populations. This action revises the CFR to comply with three court orders. In addition, this final rule takes additional
administrative action that removes archaic provisions from the gray wolf special regulation at 50 CFR 17.84(i) and makes corrections to the gray wolf special regulation at § 17.84(n) by removing language referring to a Western DPS.

How I understand this is that the Department of Interior (DOI) has cranked the clock back in time to 1978. My question now becomes, why stop there?

Quick history: In 1978 the United States declared the gray wolf “endangered” in all lower 48 states with the exception of Minnesota. Wolves there were classified as “threatened”, essentially creating the first Distinct Population Segment (DPS) of gray wolves. Map 1 below shows areas shaded in gray as wolf protection areas. As you can see, Minnesota is listed as “threatened”. Map 1 also shows two areas of “nonessential experimental populations”(NEP) for gray wolves.

On November 22, 1994 (period of wolf reintroduction) the feds created the Yellowstone NEP, shown in the dark shaded area of the map. Again on January 12, 1998 a NEP was created in parts of Arizona, New Mexico and Texas.

On July 13, 2000, the USFWS proposed changes to the listing of the gray wolf that would have created 4 Distinct Population Segments. On April 1, 2003 what the USFWS ended up with was 3 DPS as can be seen in Map 3.

February 8, 2007, the USFWS published the final rule creating the Western Great Lakes DPS, in order to remove that segment of the wolf population from federal protection.

On February 27, 2008, the USFWS published the final rule designating the Northern Rocky Mountains DPS, in order to remove federal protection of the gray wolf in that area.

If you’re following along, you will now notice that within the lower 48 states there are no fewer than 5 DPS for gray wolves.

Lawsuits followed all of these actions. On September 29, 2008, Judge Paul Friedman, in a District of Columbia federal court, ordered the gray wolf in the Western Great Lakes (WGL) DPS returned to federal protection. More on this in a moment.

On July 18, 2008, Judge Donald Molloy, in a federal court in Montana, ruled the basis for delisting the wolf incomplete (he demands “genetic connectivity”) and also declared Wyoming’s Wolf Management Plan was inadequate to ensure the sustainability of the gray wolf in that state.

The third lawsuit dates back to 2005 when courts in Oregon and Vermont ruled that the Final Rule of April 1, 2003 (that created the three DPS shown on the maps above) violated the Endangered Species Act. Subsequently the ruling invalidated the three DPS created in that final rule. What isn’t clear is whether these two rulings apply to the two NEPs.

If we take a closer look at Judge Paul Friedman’s ruling, we see that he also believes that the feds’ creation of the Western Great Lakes DPS was an illegal act. Here is what I wrote back in September.

Judge Friedman’s ruling states that the reason he remanded the case was because the USFWS failed to provide a reason, supported by the ESA, to justify removing the gray wolves in the Great Lakes region only. In remanding the case the judge is sending the issue back to the USFWS for an explanation. Judge Friedman said the ESA’s definition of a “Distinct Population Segment” is “silent or ambiguous with respect to the specific issue.

What the Department of Interior has been forced to do is comply with the rulings of the three lawsuits. As a result the USFWS describes what is left for protection of the wolf.

As of the filing of the respective court orders, any and all wolves in the northern Rocky Mountains and western Great Lakes, except in Minnesota, are listed as an endangered species under
the ESA. Any and all wolves in Minnesota are listed as a threatened species under the ESA. The reinstated regulations found at 50 CFR 17.95 designate critical habitat for gray wolves in Minnesota and Michigan, and the reinstated special regulations in 50 CFR 17.40(d) govern the regulation of gray
wolves in Minnesota. The provisions of these regulations are the same as those in the prior regulations that were removed per our February 8, 2007, final delisting rule (72 FR 6052).
The reinstated special rules found at 50 CFR 17.84(i) and (n) designate part of the wolves in the northern Rocky Mountains as nonessential experimental populations. The provisions of the special rules are the same as those in the prior special rules that were removed per our February 27, 2008, final
delisting rule (73 FR 10514).
This means that wolves in Wisconsin, Michigan, North Dakota, South Dakota, Iowa, Illinois, Indiana, Ohio, Washington, Oregon, Utah, the Idaho panhandle, and northern Montana are hereby listed as endangered (50 CFR 17.11(h)). Wolves in Minnesota are listed as threatened (50 CFR 17.11(h)). Wolves in southern Montana, Idaho south of Interstate 90, and all of Wyoming are hereby listed as
nonessential experimental populations under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). The maps in the rule portion of this document illustrate the boundaries of the nonessential experimental population areas.

*Note* The Final Rule contains maps that show NEPs as described above.

What is becoming distinctly clear in all of these cases combined is that the DOI and USFWS have no legal authority to create a Distinct Population Segment for any species.

In the Vermont court case, part of the two lawsuits that essentially rendered the three DPS of wolves in the lower 48 states illegal and a violation of the Act, Judge J. Garvan Murtha’s ruling stated the following:

The definition of “species” includes “any distinct population segment of any species.” 16 U.S.C. § 1532(16). The ESA does not define “distinct population segment” (“DPS”), nor is it a term used in scientific literature.

Judge Murtha recognizes that the “DPS Policy” “allows” for the USFWS to protect species based on the Policy Regarding the Recognition of Distinct Vertebrate Population. This policy takes into consideration the “discreetness”, “significance” and “conservation status” of species. But Murtha obviously doesn’t think creating a DPS for management purposes and in this case, delisting purposes, is legal.

Judge Paul Friedman, who ruled that the WGL DPS was illegal, also stated that there is no definition of a Distinct Population Segment.

In 1978, the gray wolf (Canis lupus) was listed as threatened in Minnesota and endangered throughout the rest of the conterminous United States. On February 8, 2007, the United States Fish and Wildlife Service (FWS), an agency within the Department of the Interior, promulgated a final rule revising the wolf’s listing status. See 72 Fed. Reg. 6052 (Feb. 8, 2007) (the “Final Rule”). The Final Rule did not affect the listing status of the gray wolf everywhere. Rather, it designated a cluster of gray wolves in the western Great Lakes region as a “distinct population segment” or DPS. It then removed the wolves within the western Great Lakes DPS from the endangered species list. The Final Rule did not change the listing status of gray wolves outside the boundaries of the western Great Lakes DPS.

Judge Friedman tells us that the Endangered Species Act of 1973 as amended, is ambiguous when it comes to defining a Distinct Population Segment.

(16) The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

Friedman claims that the USFWS has the authority to declare any area a Distinct Population Segment based on the above as described in the ESA. But most telling is that he says the USFWS cannot create another DPS within the broader DPS. Which of course makes no sense at all as would pertain to proper and quality wildlife management. (Note that most states through “best available science” practices, have learned that in order to properly manage wildlife, they must create wildlife management districts.)

As a result of the three court cases discussed above, I have to ask why the Department of Interior stopped their clock rewinding at 1978? Why not go back to pre-ESA. As we have seen by court rulings of Defenders of Wildlife v. Norton, National Wildlife Federation v. Norton, Humane Society of the United States v. Kempthorne and the twelve parties that sued Kempthorne to put the wolf back under federal protection in the NRM DPS, tells us that creating DPSs is an illegal act. Any reasonable person would now question whether the federal government had the authority to create the first Distinct Population Segment of gray wolves in 1978 when it classified wolves in all the lower 48 states.

The confusing mess this has created now extends beyond just the gray wolf. It involves every species in existence in the United States. This is a clear example of the courts having inadequate knowledge of the issues making rulings that have now put the very species we may be wanting to protect in danger as well as stripping management powers from the USFWS.

I wrote recently of the efforts taking place as we speak to list the Atlantic salmon in Maine as endangered or threatened under the ESA. From this information we now ask, can the USFWS and NMFS (National Marine Fisheries Service/NOAA) create a Distinct Population Segment of Atlantic salmon? The feds are attempting to expand the listing and define critical habitat. This, according to the court’s interpretation, is creating a new DPS within a DPS.

Surely the Department of the Interior, in issuing this final ruling to return the gray wolf protection to 1978 levels, is telling us their hands are tied. They should have taken it one step further and rescinded the original declaration of a wolf DPS within the U.S. from the beginning. (Perhaps they knew that would actually get someone’s attention.)

This also raises some very serious issues with regard to the “Nonessential Experimental Population” of gray wolves in the Yellowstone National Park area and Arizona, New Mexico and Texas. Was it a legal act to create these NEPs? The broader question becomes whether the federal government had legal authority to reintroduce wolves into these regions? Surely if they can’t create segmented DPS of a species for management purposes, they have no legal right to dump species into these illegally crafted NEPs.

Obviously the power and authority of the Department of Interior, which includes the U.S. Fish and Wildlife Service, to manage wildlife has evaporated. Any so-called environmental or preservationist organization, with money behind it, can control the courts and get what they want. The Endangered Species Act is only as good as the lawsuits permit it to be. Perhaps it is time for the states to reclaim their sovereignty.

It appears the DOI has lobbed the ball back into the courts, figuratively and literally.

Tom Remington