Academic journal article Environmental Law

The Wolves May Have Won the Battle, but Not the War: How the West Was Won under the Northern Rocky Mountain Wolf Recovery Plan

Academic journal article Environmental Law

The Wolves May Have Won the Battle, but Not the War: How the West Was Won under the Northern Rocky Mountain Wolf Recovery Plan

Article excerpt


In February 1999, a female gray wolf known as B-45(1) followed the Snake River from Idaho and crossed into eastern Oregon.(2) B-45 holds the distinction of being the first wild wolf spotted in Oregon since 1963.(3) While the historical range of the gray wolf (Canis lupus) stretched throughout most of the coterminous United States and into Canada, its current range is much more limited, because the gray wolf has largely been e eliminated from the western United States.(4) Since 1978, the gray wolf has been listed as an endangered species throughout the lower forty-eight states, except for Minnesota, where it is listed as threatened.(5) Federal wildlife officials returned B-45 to Idaho the following month, because they feared she would be unable to find a mate in Oregon.(6) Her brief stay, however, heralds the arrival of complicated issues for the western states, few of which have wolf management programs. States will be unprepared to manage wolf populations when, given the current success of the reintroduction program, the wolves repopulate the Pacific Northwest and are delisted.(7)

B-45 is part of a recovery program authorized under the Endangered Species Act (ESA or Act),(8) which charges the federal government to "take such steps as may be appropriate" to conserve and protect endangered species to the point where the species can be removed from the endangered or threatened species lists,(9) Section 10(j) of the Act authorizes the United States Fish and Wildlife Service (FWS) in the Department of the Interior to create "experimental populations" of endangered or threatened species as a conservation tool.(10) These populations must be released into uninhabited portions of the species' historical range and are subject to less strict prohibitions than naturally occurring populations of endangered or threatened species.(11)

The Fish and Wildlife Service created the Northern Rocky Mountain Wolf Recovery Plan (NRMWRP) to reintroduce gray wolves into Yellowstone National Park and central Idaho, with the expectation that these wolves will eventually repopulate the West.(12) Eight years in the making, the plan was finally implemented in the winter of 1994-1995, when Canadian gray wolves were captured and released into two areas: Yellowstone National Park and central Idaho.(13) The program is believed to be highly successful, resulting in a population of about 170 adult wolves in each area, and mating between wolf packs indicates that the gray wolf is closer to becoming one integrated population.(14)

To establish an experimental population under section 10(j), the population must be "wholly separate geographically" from any already existing wolves within the experimental area.(15) Two recent court decisions examined this requirement in connection with the NRMWRP. Both the Ninth and Tenth Circuits upheld the FWS's regulations, which interpret the "wholly separate geographically" language to mean that the experimental population must be wholly separate geographically from any already existing populations of gray wolves, rather than wholly separate from individual gray wolves. The Tenth Circuit upheld the validity of the FWS wolf reintroduction regulations, reversing the district court's order to remove the experimental population of wolves from Yellowstone and central Idaho.(16) Meanwhile in United States v. McKittrick, the Ninth Circuit interpreted the same statutory language from the section 10(j) experimental population provision and regulations.(17) It determined that the "wholly separate geographically" language applied to populations of gray wolves, rather than individuals and rejected the argument that sightings of lone wolves constituted a population,(18)

McKittrick argued that the Canadian wolves transported to Yellowstone to create the experimental population were neither endangered nor threatened because wolves in Canada are not endangered. The Ninth Circuit concluded that the current location of a particular gray wolf determines whether or not it is considered part of an experimental population, not where the wolf originated. …

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