Judge Orders Deportation of Reintroduced Wolves

by Rob Edward

It has been a hard year for the beleaguered megafauna of the Northern Rockies. Last winter, ranchers and government officials slaughtered over half of Yellowstone's buffalo herd, pushing it closer to disappearance. As if the war on the bison were not enough, in December 1997 a federal judge ordered that all of the wolves reintroduced into Yellowstone and central Idaho be removed. The judge's decision played right into the hands of ranchers, raising deep concerns about the future of the great predators of the Northern Rockies. Further, the lawsuit behind this bizarre ruling speaks volumes about the vulnerabilities of the Endangered Species Act-and the dangers of political compromise.

During the development of the Northern Rockies Wolf Recovery Plan to reintroduce wolf's in the 1980s, some environmentalists worried that rural distaste for the Endangered Species Act (ESA) would railroad the whole program. The ESA is seen by rural folk as the mighty hammer of liberal urbanites seeking to destroy the institution of private property. Consequently, the organizations hatched an idea to allay such fears.

To sell the reintroduction plan, the government classified the transplanted wolves as "experimental/non-essential," rather than "endangered." This change in status precluded any habitat protections (keeping the timber companies happy) and allowed ranchers to shoot wolves caught in the act of killing livestock-no questions asked. A win-win compromise, or so it seemed.

Meanwhile, in other quarters of the conservation movement, consternation was brewing. Some folks believed the compromise set a dangerous precedent, stripping pre-existing wolves in Idaho of their rightful legal status under the ESA and precluding designation of critical habitat for wolves (thus requiring the US Forest Service to consider the impact of roads, RVs and timber sales on wolves).

Early in 1995, the Sierra Club Legal Defense Fund (now called Earth Justice Legal Defense Fund) filed suit against the government on behalf of the National Audubon Society, Predator Project, Sinapu and the Gray Wolf Committee. The suit sought to preserve the endangered status of the naturally recolonizing wolves and did not involve the Yellowstone reintroduction.

On the other side of the barbed-wire, the Mountain States Legal Foundation and the Farm Bureau Federation filed suit on behalf of ranchers seeking to halt the reintroduction. Ironically, their suit also challenged the use of the experimental/non-essential rule allowing reintroduction, although they broadened the scope of their case to include the Yellowstone program. This opened the doors for the Justice Department to combine the Farm Bureau case with the one filed by conservationists. While the decision to merge the two cases made the judge's job easier, it bode poorly for the Idaho wolves.

In the first days of the reintroduction, the Farm Bureau's lawyer moved to enjoin the wolf release. Earth Justice lawyer Doug Honnold urged Judge Downes to let the program move forward, "Even though we were suing the government over the program, our intent was not to stop wolves from being released," Honnold reflected. In contrast, the Farm Bureau's lawyers worked feverishly to prevent the release, right up until the transplanted wolves were let loose. Though Judge Downes refused the motion for an injunction, legal wrangling delayed the release so long that the health of the wolves was placed in serious jeopardy.

Both sides expected a decision on the case within a relatively short period of time. Months of waiting, however, turned into years.

Finally, in December 1997, Judge Downes unveiled a 50-page decision-in favor of both sets of plaintiffs. He agreed that the US Fish and Wildlife Service (USFWS) had illegally applied the experimental/non-essential rule. The ruling itself was cause for celebration, underscoring the fact that the Endangered Species Act must not be subverted for the sake of political expediency. However, Judge Downes threw a curveball, ordering that all of the reintroduced wolves and their progeny be captured and shipped back to Canada.

Few legal experts understand Judge Downes' removal order. No legal precedent exists for such a decision. The remedy the conservationists sought was an order forcing the USFWS to revise its recovery plans to ensure that the naturally recolonizing wolves of Idaho be treated as endangered. That could have meant devising some complicated scheme to monitor the location of both the transplants and the natives, declaring wolves of both groups in the areas of overlap as endangered or declaring the entire central Idaho population as endangered.

Honnold plans to ask the court to strike Judge Downes' removal order and instead order the USFWS to revise the recovery plan to protect the wolves of central Idaho. As for the wolves of Yellowstone, Honnold argues that, "The Farm Bureau and Judge Downes got it wrong. The purpose of the Endangered Species Act is to protect and restore species. Using the Act as a tool to destroy these wolves would make a mockery of that noble goal."

This case will likely have implications for the impending revision of the Endangered Species Act. Tom Skeele points to the crux of the case, "The use of the experimental/non-essential designation is slowly but surely becoming the rule, rather than a rare exception."

Although the ruling stirred-up a lot of talk in the boardrooms and coffeeshops, the wolves of the Northern Rockies face another romping winter in the Northern Rockies, unaware of the turmoil. Fortunately, this year no helicopters will be descending upon the wolves of Yellowstone and Idaho, and if the conservationists' appeal is upheld: they won't ever.

For more information on this issue, contact Predator Project at POB 6733, Bozeman, MT 59771; (406) 587-3389; e-mail: predproj@avicom.net; http://www.wildrockies.org/predproj or Sinapu at POB 3243, Boulder, CO 80307; (303) 447-8655; e-mail: sinapu@sinapu.org; http://www.sinapu.org.

Rob Edward is the acting executive director of Sinapu, a group dedicated to the recovery of wolves in the Wild Rockies and to the restoration of the wild habitat in which all species flourish.