Federal judge in Colorado enjoins delisting of the gray wolf in the northern Rocky Mountains
Defenders of Wildlife v. Hall, 2008 WL 2780917 (D.Mont. July 18, 2008)
Wolves were once abundant throughout most of North America. Wolf hunting and an active, government-sponsored eradication program resulted in the extirpation of wolves from more than 95 percent of their range in the lower 48 states. They were exterminated in Idaho, Montana, Wyoming, and adjacent southwestern Canada by the 1930s. . The Northern Rocky Mountain gray wolf was listed under the ESA in 1974. 39 Fed.Reg. 1171 (Jan. 4, 1974). In 1987, the Fish & Wildlife Service developed a wolf recovery plan. 72 Fed.Reg. at 6107. This plan established a recovery goal of at least 10 breeding pairs and at least 100 wolves for three consecutive years in each of three core recovery areas: northwestern Montana, central Idaho, and the Greater Yellowstone area. Photo from FWS South Dakota Field Office.
OPINION BY DONALD W. MOLLOY, District Judge. "This case, like a cloud larger than a man's hand, will hang over the northwest states of Montana, Idaho, and Wyoming until there has been a final determination of the complex issues presented . Those issues must be answered in accordance with the intent of Congress as stated in the Endangered Species Act and its implementing regulations. Here, Plaintiffs challenge the U.S. Fish & Wildlife Service's decision to designate and delist a northern Rocky Mountain gray wolf distinct population segment under the Endangered Species Act ("ESA"), 16 U.S.C. 1536. In seeking to alter the course of that decision, Plaintiffs move for a preliminary injunction. They ask the Court to reinstate ESA protections for the wolf, at least while this lawsuit is pending... In my view, Plaintiffs are likely to succeed on the majority of the claims relied upon in their request for a preliminary injunction. In particular, (1) the Fish & Wildlife Service acted arbitrarily in delisting the wolf despite a lack of evidence of genetic exchange between subpopulations; and (2) it acted arbitrarily and capriciously when it approved Wyoming's 2007 plan despite the State's failure to commit to managing for 15 breeding pairs and the plan's malleable trophy game area. In both instances, the Fish & Wildlife Service altered its earlier position without providing a reasoned decision for the change based on identified new information.
KEITHINKING: The Court's opinion appears to reject the FWS position, as previously published in the Federal Register and as discussed in ESA blawg (Feb. 27, 2008). Of particular note, the Court ruled that "the reduction in the wolf population that will occur as a result of public wolf hunts and state depradation control laws... is more than likely to eliminate any chance for genetic exchange to occur between subpopulations..." While the opinion does cite record evidence in support of this conclusion, the court's ruling reflects a significant judicial second-guessing of the government agencies, in two respects. First, it gives little credence to the the state wildlife agencies and their efforts to address the realities of wolf preservation. Second, it dismisses the analysis by the U.S. FWS as to the sufficiency of state law, and does so based on genetics, an area clearly within the realm of FWS expertise. Nevertheless, since this case is only at the preliminary injunction stage, the decision could simply reflect a Federal judge's application of the precautionary principle.