Gray Wolves in the Northern Rockies Again Staring Down the Barrel at Hostile State Management

This Article argues that FWS’s wolf recovery standards,
which provide for a northern Rockies population of only 300 wolves and 30
breeding pairs, are inadequate and unlawful because they are not based on the best
available scientific evidence. By removing northern Rockies gray wolves from
the list of federally protected species based upon demonstrably inadequate
demographic recovery criteria, FWS flouts its conservation mandate under the
ESA and places gray wolves in jeopardy of extinction.

I. Background

According to FWS, “wolves were hunted and killed with more
passion and zeal than any other animal in U.S. history.”[2]
By the 1930s, wolves were all but eradicated from the western United States through poisoning, trapping, and shooting.[3] Gray
wolves were among the first species to be listed by the Secretary of Interior
as endangered when Congress enacted the ESA in 1973.[4]
In 1987, when virtually no wolves roamed the northern Rockies, FWS developed a
northern Rockies wolf recovery plan that established a goal of at least ten
breeding pairs and one hundred wolves for three consecutive years in each of
three recovery areas: northwestern Montana, central Idaho, and the Greater
Yellowstone area.[5] In 1994, FWS revised these
criteria to require a minimum of “thirty or more breeding pairs . . .
comprising some 300+ wolves in a metapopulation . . . with genetic exchange
between subpopulations.”[6]
Protected under the ESA from unregulated killing by humans, gray wolves began
to return to their native landscapes in northwestern Montana from populations
in Canada. In 1995 and 1996, gray wolf recovery surged when FWS reintroduced
sixty-six gray wolves into Yellowstone National Park and central Idaho. Since that reintroduction, the wolf population has grown to approximately 1650
wolves in Wyoming, Montana, and Idaho today.[7]

In February 2008, FWS announced its decision to eliminate
ESA protections for wolves in the northern Rockies and leave management to the
states.[8] Conservation groups,
represented by Earthjustice, sued in federal court and obtained a preliminary
injunction restoring the wolf to the list of endangered species.[9]
In a meticulous, forty-page opinion, Judge Donald Molloy of the U.S. District
Court for the District of Montana detailed substantial deficiencies with FWS’s
effort to delist the region’s wolves. These included a current lack of the
“genetic exchange” FWS deemed essential to the population’s recovery—and
required for delisitng—and a wolf management scheme in Wyoming that left the
wolf population in “serious jeopardy.”[10] In
response, FWS abandoned the challenged delisting rule and the rule was remanded
and vacated in October 2008.

On October 28, 2008, just two weeks after the agency’s final
delisting regulation was vacated by the Montana court, FWS “announce[d] the
reopening of the comment period for [the] February 8, 2007, proposed rule”—the
same proposal that launched the judicially discredited February 2008 delisting
of gray wolves in the northern Rocky Mountains.[11]
FWS offered no new information to support its assertion that the region’s wolf
population was suitable for delisting. To address the court’s determination
that regulatory mechanisms in Wyoming are inadequate to maintain a recovered
wolf population, FWS proposed retaining ESA protections for Wyoming wolves
while delisting the remainder of the newly designated northern Rocky Mountain distinct population segment (DPS).

The clock ran out on the Bush administration before it could
finalize the wolf delisting rule. On January 20, 2009, President Barack Obama’s
Chief of Staff issued a memorandum to the heads of all executive departments
and agencies ordering a legal and policy review of almost all pending Bush
administration regulations. Regulations that had been sent to the Federal
Register but not yet published, including the wolf delisting rule, were to be
withdrawn pending completion of the review. Following review of the delisting
rule, the Secretary of the Interior would have the discretion to issue the rule
without changes, modify the rule, or permanently withdraw the rule.
Conservation groups argued that the wolf delisting rule should be permanently
withdrawn, allowing the new Obama administration to chart a new course to wolf
recovery.

Notwithstanding substantial arguments that the Bush
administration’s delisting rule was unlawful, Interior Secretary Ken Salazar
announced that he would reaffirm the Bush policy. The delisting rule was
finalized by publication in the Federal Register on April 2, 2009 and took
effect on May 4, 2009.[12]
The day the rule was published, the coalition of thirteen conservation
organizations that challenged FWS’s initial wolf delisting rule sent FWS a
sixty-day notice of intent to challenge the new delisting rule, pursuant to the
ESA’s citizen suit provision, 16 U.S.C. § 1540(g).[13]
Plaintiffs filed their lawsuit on June 4, 2009.[14]

II. Discussion

A. The ESA Listing Framework

The ESA was enacted to “provide a program for the
conservation of . . . endangered species and threatened species” and to
“provide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved.”[15] To
receive the full protections of the Act, a species must be listed by the
Secretary as “endangered” or “threatened” pursuant to ESA section 4.[16]
The ESA defines “endangered species” as “any species which is in danger of
extinction throughout all or a significant portion of its range.”[17]
The term “species” includes “any distinct population segment of any species of
vertebrate fish or wildlife which interbreeds when mature.”[18]
Under these definitions, the FWS can list a DPS of a vertebrate species, even
when the species as a whole is neither endangered nor threatened.[19] By extending ESA protections to
locally vulnerable populations, DPSs are meant to “protect and conserve species
and the ecosystems upon which they depend before large-scale decline occurs
that would necessitate listing a species or subspecies throughout its entire
range.”[20]

Before listing or delisting a species as endangered or
threatened, the ESA requires the Secretary to evaluate biological and
regulatory factors.[21] The Secretary must make
listing determinations “solely on the basis of the best scientific and
commercial data available to him after conducting a review of the status of the
species.”[22]

B. FWS Wolf Recovery Standards for the Northern Rocky Mountains Are
Inadequate to Ensure Long-Term Population Viability

FWS ignored the “best scientific . . . data available” when
it delisted gray wolves in the northern Rocky Mountains based upon inadequate
recovery standards. FWS failed to conduct a meaningful evaluation of current
scientific information demonstrating that its gray wolf recovery goal does not
ensure the long-term survival of the species’ northern Rockies population.
Instead, FWS relied upon decades-old criteria that were established when no
wolves occupied the northern Rockies landscape. Lacking a scientific basis,
these criteria rested on a conservative prediction about the potential success
of wolf reintroduction and recovery. This low recovery bar disregards the new
reality that, with adequate protection from human-caused mortality and habitat
encroachment, wolves can establish a biologically sound population and reclaim their
role as a keystone species in the northern Rockies ecosystem.

Well-established principles of conservation biology hold
that populations need robust numbers of individuals for long-term viability. To
avoid the adverse genetic effects of inbreeding, widely accepted scientific
studies estimate that a minimum viable population (MVP) requires an effective
population size (“N_e”) of 500.[23]
An effective population size is defined by the number of breeding adult
individuals in a population. Since effective population sizes are generally 10
to 20 percent of the census population, this means that a total population
count of 2500 to 5000 individuals is necessary to ensure population viability.
FWS has never performed a species-specific analysis to determine the minimum viable
population size for gray wolves in the northern Rockies. Yet in other
rulemakings, FWS has recognized and applied the conservation biology
“rule-of-thumb” requiring an effective population size of 500 individuals for
long-term population viability.[24]

Similarly, FWS’s recovery standard for wolves in the
northern Rockies conflicts with internationally recognized protocols for
assessing the status of wildlife populations. The International Union for
Conservation of Nature (IUCN) publishes the “Red List Criteria,” a list of
categories and criteria that it applies to determine species’ conservation
status.[25] IUCN thresholds for
evaluating threat of extinction represent internationally accepted standards in
population biology and have been cited and relied upon by FWS in rendering ESA
listing decisions.[26]

The IUCN process requires listing a species as
“vulnerable”—which is comparable to ESA “threatened” listing—if the population
size drops below 1000 “mature” individuals.[27] An
individual is classified as “mature” if it is capable of reproducing.[28]
This demographic standard addresses the need to maintain genetic diversity
within isolated populations. When the number of breeding individuals drops
below a certain threshold, the population may lose the genetic diversity
necessary for population adaption to changing conditions.

In the case of gray wolves, only a small percentage of the
population contributes to its genetic heritage. Wolves typically do not begin
breeding until two years of age and only the alpha male and alpha female within
a pack reproduce.[29] With an estimated 1645
wolves in 95 breeding pairs, the northern Rockies wolf population is well below
the IUCN’s floor for designating a species or isolated population as
“vulnerable” due to threats to genetic diversity.[30]

These well-established, objective criteria gave FWS reason
to know that it was setting inadequate goals for population size when it
drafted the gray wolf recovery plan. Indeed, in 1994, FWS acknowledged the
science suggesting that a minimum effective population size of 500 breeding
individuals is essential for the population’s long-term survival, but
nonetheless reaffirmed its inadequate recovery goals.[31]
Since then, the evidence has mounted. Before FWS initially delisted wolves in
February 2008, the agency received a letter signed by nearly 250 scientists
stating that:

current numbers of wolves do not
meet the minimum requirement for genetic viability. If these numbers are
further reduced, the population is certain to face the detrimental genetic consequences
associated with isolated populations of few individuals. By any measure, a
population of 30 breeding pairs (300 wolves) is insufficient to achieve an
effective population size large enough to maintain essential genetic diversity.[32]

Indeed, FWS Wolf Recovery Coordinator Ed Bangs has conceded
that the FWS recovery standard is too low.[33]

In seeking to
justify its adherence to a 300-wolf recovery standard, FWS has pointed to other
wolf populations that allegedly are healthy despite relative isolation and
small population size. For example, FWS asserts without support that wolves
within the northern Rockies wolf population will not suffer deleterious effects
of inbreeding depression like those afflicting the Isle Royale National Park wolf population in Michigan.[34] In fact, FWS cited Isle Royale as an example of an isolated wolf population that has persisted notwithstanding
its small size last year in support of its initial delisting effort.[35]
Also, FWS compares northern Rockies wolves to a small, isolated wolf population
on Alaska’s Kenai Peninsula that FWS states is genetically healthy. Without
providing any current information on the genetic status or genetic trends of
Kenai wolves, FWS claims that northern Rockies wolves will similarly remain
genetically diverse despite a small population size. Lacking comparative
evidence, it is arbitrary for FWS to state that Kenai wolves and Isle Royale
wolves are useful indicators of the northern Rockies wolves’ genetic future.

FWS has unlawfully turned a blind eye to substantial
scientific evidence that its current northern Rockies wolf recovery standard of
300 wolves and 30 breeding pairs is inadequate to ensure the wolf’s long term
viability. This low threshold defining wolf recovery reflected the political
and practical reality at the time it was developed, notwithstanding science
then available suggesting the necessity of a much larger population.[36]
It has now been demonstrated that “a total [wolf] population in the low
thousands” is feasible in the northern Rockies.[37]
There is no reason for FWS to cling to its politically established recovery
goal rather than one based on science, as required by the ESA.

C. After Delisting, States May Implement Aggressive Management Practices
Designed to Substantially Reduce Wolf Numbers

While adhering to the inadequate, two-decades-old wolf
recovery goal of only 300 wolves and 30 breeding pairs, FWS insists that the
northern Rockies wolf population will actually be maintained at much higher
numbers even after delisting takes effect. Implicitly recognizing that 300
wolves in the northern Rockies is insufficient, FWS speculates that under state
management, the northern Rockies wolf population “is likely to consist of 973
to 1,302 wolves in 77 to 104 breeding pairs.”[38]
However, FWS has not sought commitments from the states to maintain those
levels and the agency acknowledges that states may fully implement aggressive
wolf-reduction policies once FWS relinquishes control.[39]
In fact, hostile wolf policies may reduce the northern Rockies wolf population
well below the numbers necessary for its survival.

In the final rule delisting northern Rockies gray wolves,
FWS stated that “[t]he numerical component of the recovery goal represents the
minimum number of breeding pairs and individual wolves needed to achieve and
maintain recovery.”[40] Accordingly, FWS
required the states of Montana, Idaho, and Wyoming to prepare management plans
that would ensure this target minimum number of wolves.[41]
Under the rule, a post-delisting status review of the species, which could
result in relisting of the species or maintaining the status quo, would only be
triggered if one of three conditions are met: (1) the wolf population in any
one state falls below 10 breeding pairs and 100 wolves for a single year; (2) the
wolf population in any state falls below 15 breeding pairs and 150 wolves for
three consecutive years; or (3) changes in state laws “significantly increase
the threat to the wolf population.”[42] Thus, regardless of
FWS’s wishful speculation about the future size of the wolf population under
state management, by delisting wolves, FWS has forfeited its authority to
ensure that the wolf population remains above the meager threshold FWS
established for population viability.

Indeed, while FWS contends that Idaho—which hosts the
largest wolf population of the northern Rockies states—will conservatively
manage wolves, Idaho plans to slash the state’s wolf numbers as soon as
delisting occurs. As Idaho’s 2002 wolf management plan emphasizes, Idaho remains committed to wolf eradication. The plan incorporates House Joint Memorial No.
5 as “the official position of the State of Idaho,” which resolved that “wolves
be removed [from Idaho] by whatever means necessary.”[43]
At a rally in early 2007, Idaho governor Butch Otter announced his support for
a “gray wolf kill,” in which all but 100 of Idaho’s wolves would be killed
after delisting. Speaking to hundreds of hunters, Otter proclaimed, “I’m
prepared to bid for that first ticket to shoot a wolf myself.”[44]

Idaho is now seeking federal approval to kill over 25 wolf
packs, which translates to 100–250 wolves, in response to purported chronic
livestock depredation. Idaho is also preparing a proposal for federal approval
to kill roughly 100 wolves in Idaho’s upper Clearwater Basin in response to
wolves’ perceived impacts on ungulate herds.[45] After
delisting occurs, however, federal approval will be unnecessary and Idaho may implement its wolf-killing plans at will. Further, Idaho intends to hold a public
wolf hunt in Fall 2009. Although the Idaho Game and Fish Commission has not yet
established wolf hunting regulations for 2009, the Commission adopted a wolf
mortality quota in 2008 of 428 wolves, which included hunting and other sources
of mortality.[46] Nothing constrains the
Commission from establishing an even higher quota in 2009.

Idaho’s open hostility toward wolves is official state
policy. While Montana has adopted a more conservative tone, it has made no
enforceable commitment to maintaining more than the minimum number of wolves
required by FWS’s recovery standard.[47] There is no support for
FWS’s confidence that once federal ESA protections are lifted, Idaho and Montana will retain more than the FWS-established wolf recovery floor of 100
wolves and 10 breeding pairs. The reality that states may aggressively reduce
the northern Rockies wolf population underscores the importance of FWS’s
definition of wolf recovery and status review thresholds included in the
delisting rule. FWS’s wolf recovery standard of 300 wolves and 30 breeding
pairs distributed throughout the northern Rockies ecosystem is far lower than
the minimum viable population size supported by the best available science.

Conclusion

By transferring
wolf management authority to the states, FWS has left itself virtually
powerless to ensure that the northern Rocky Mountain wolf population remains at
sustainable numbers. FWS’s finalized decision to delist northern Rockies wolves without ensuring adequate safeguards to maintain a viable long-term
population violates its ESA duty to employ the best scientific data available
and to conserve imperiled species.[48] To comply with the
ESA’s mandates, FWS must initiate notice-and-comment rulemaking to withdraw the
delisting rule and restore ESA protections for gray wolves in the northern Rockies. FWS should apply the process to undertake the thorough legal and policy review
required by the Chief of Staff’s January 20, 2009 regulatory review memorandum
and to follow President Obama’s direction that agencies employ sound science in
decision making with respect to endangered species.[49]
If gray wolves in the northern Rockies remain within the management authority
of states not obligated to protect them, they are again in peril of plummeting
to the brink of extinction.

Copyright 2009 The Regents of the University of California. All rights reserved.

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