Court reconsiders wolf status – is 10j rule valid?
by Cat Urbigkit, Pinedale Online!
February 5, 2011
U.S. District Court Judge Donald Molloy has issued a "motion to show cause"
to parties involved in the wolf delisting lawsuit in his court, giving parties
until Feb. 22 to brief him on a legal question he is pondering. Because of the
importance of the question, here is the detail from Molloy’s order.
In November of 1994, the Fish and Wildlife Service ("Service") promulgated
regulations that designated unoccupied portions of Idaho, Montana, and
Wyoming as non-essential, experimental population areas for the gray wolf.
50 C.F.R. 17.84(i). In 1995 and 1996 the Service reintroduced wolves into
those areas. Id.
The authority used to reintroduce the wolves is found in § 10(j) of the
Endangered Species Act. 16 U.S.C. § 1539(j). Under § 10(j) the wolves of the
northern Rocky Mountains were designated a nonessential experimental
species. The present lawsuit presumes the 10(j) nonessential experimental
status still exists.
II. History of the Case
The issue of wolf management has been heavily litigated in this court. January
28, 2008, Plaintiffs challenged the 2008 revisions of the 10(j) regulations that
govern management of the reintroduced wolf population of the northern
Rocky Mountains. In April 2009 this court stayed the proceedings while
multiple groups challenged the U.S. Fish & Wildlife Service’s decision to
designate and partially remove protections from the northern Rocky Mountain
gray wolf distinct population segment (DPS) under the ESA, 16 U.S.C. § 1536.
August 5, 2010 this court resolved the challenges to the wolf listing.
Consequently the stay in the present proceedings court are cross motions for
"III. Does a 10(j) nonessential experimental population exist?
In the special rule published in March of 2010, the Service noted that it does
not intend to reevaluate the "nonessential experimental" designation given to
the reintroduced wolves of the northern Rocky Mountains. 50 C.F.R. §
17.84(i)(9) (2010). Instead, the Service indicated that it would not alter the
10(j) status until the gray wolf of the northern Rocky Mountain DPS is
recovered and delisted. Id.
But it is unclear whether removal of 10(j) experimental status requires action
of a branch of the federal government. See 16 U.S.C. § 1539(j).
An experimental population is defined as "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." 16 U.S.C. § 1539(j). In order to retain its status as an
experimental species, the species must meet the statutory definition.
According to the statutory definition, the experimental designation is not
permanent. For example, "[w]hen experimental and nonexperimental
populations overlap—even if the overlap occurs seasonally—section 10(j)
populations lose their experimental status." U.S. v. McKittrick, 142 F.3d
1170, 1175 (9th Cir. 1998) (citing 50 C.F.R. § 17.80(a)). Additionally, while
the statute provides for the possibility that the experimental status continues
after the death of the original released wolves, the experimental designation
is retained only if the remaining offspring arise solely from the released
population. 16 U.S.C. § 1539(j)
In 1998 the Ninth Circuit Court of Appeals concluded an experimental
population existed. McKittrick, 142 F.3d at 1175. The defendant in U.S. v.
McKittrick pointed to sporadic sightings of isolated indigenous wolves in the
release area to support his theory that the released wolves were not wholly
separate geographically and that an experimental population did not exist.
The Court rejected the argument holding that lone wolves or dispersers do
not constitute a population that could render the experimental population not
wholly separate geographically from a nonexperimental population. Id.
While at the time of their introduction the reintroduced wolves enjoyed
10(j) experimental status, based on evidence presented to this court and facts
in the Federal Register, it is unclear whether the population meets the
statutory definition of an experimental population.
Over a decade has passed since 1998, and legal questions have surfaced as
circumstances have changed. McKittrick dealt with non breeding
disperserwolves and the status of the experimental population at the time
wolves were reintroduced into the release areas. But to what extent is the
experimental status threatened if multiple dispersing wolves breed with the
Additionally, whether the offspring of the wolves of the northern Rocky
Mountains have arisen solely from the original released wolves has not been
addressed. The wolves released in 1994 have since died. See 74 Fed. Reg.
15, 123 (noting wolves can live 13 years but average less than 4 years in the
DPS). Representations made to this court indicate that genetic exchange with
nonexperimental populations has occurred in the DPS both naturally and
through human-assisted migration management.
Representing the Department of Justice in Defenders of Wildlife v. Salazar,
CV-09-77-M-DWM, Mark Eitel stated in a hearing held on August 31, 2009:
"And second, Your Honor, we have data, it is proven, that wolves are
dispersing between all three recovery areas and Canada. Further, we have
documented genetic exchange from naturally dispersing wolves, from
genetic data from 1994 to 2004.
"So, Your Honor, we have that data. We know these populations are affected.
We know wolves are dispersing. And that's from one limited sample of
genetic data and two from radio-collared wolves which constitute about 30
percent of the population.
"So the scientists know that if we're counting dispersals between all three
recovery areas, if we're seeing genetic exchange from a limited set of data, we
know there's more occurring than we are documenting. Because the whole
biology of these wolves—I mean, they reproduce quickly. And the pups, the
pups that survive, they disperse to go find new areas and go breed.
"So that's the biology of these wolves. They go travel to find new packs and
"So we know for seeing some, there's a lot more that we don't know. So,
Your Honor, Fish & Wildlife found these are areas, adequate exchange. "
Hrg. Transcr. 38:12 to 39:8 (Aug. 31, 2009) (CV-09-77-M-DWM).
In the same cause of action in a June 15, 2010 hearing, Mike Eitel reported:
"Genetic diversity in this wolf population is extremely high. There's routine
dispersal between all three recovery areas. I mean, the central Idaho and the
Greater Yellowstone recovery areas are about 60 miles apart, and that is an
average dispersal distance of a wolf. And proven effective genetic exchange
has occurred between all three wolf subpopulations. And with the Canadian
population, over 12,000 wolves. So you have a population connected, it's
genetic and biologically robust and it's created a vast Canadian population.
Hrg. Transcr. 60:17 to 61:-61:2 (June 15, 2010) (CV-09-77-M-DWM)."
Further, the Federal Register cited in the Government’s Statement of
Undisputed Facts supports a conclusion that the experimental and
nonexperimental wolf populations are connected and genetically intertwined.
State. of Undisputed Facts in Support of F. Def.’s Cross-Mot. for S.J. & in
Opposition to Pl.’s Mot. for S.J., Defenders of Wildlife v. Salazar at ¶¶ 139,
159, 161,164 (D. Mont. 2009) (CV-09-77-M-DWM dkt # 115). The following
excerpts are from an April 2, 2009 entry in the Federal Register. 74 Fed. Reg.
15123-01 (April 2, 2009).
"[N]atural dispersal and human-assisted migration management has resulted
in documented genetic exchange between dispersing and resident wolves
among all three recovery areas, including the GYA. Id. at 15135.
* * *
Routine dispersal of wolves has been documented among northwestern
Montana, central Idaho and adjacent Canadian populations demonstrating
that northwestern Montana's wolves are demographically and genetically
linked to both the wolf population in Canada and in central Idaho (Pletscher
et al. 1991, pp. 547-8; Boyd and Pletscher 1999, pp. 1105-1106; Sime 2007,
p. 4; Jimenez et al. 2008d). Because of fairly contiguous, but fractured
suitable habitat wolves dispersing into northwestern Montana from both
directions will continue to join or form new packs and supplement this
segment of the overall wolf population (Boyd et al. 2007; Forbes and Boyd
1996, p. 1082; Forbes and Boyd 1997, p. 1226; Boyd et al. 1995, p. 140;
vonHoldt et al. 2007, p. 19; vonHoldt et al. 2008; Thiessen 2007, p. 50;
Sime 2007, p. 4; Jimenez et al. 2008d). Id. at 15136
* * *
We have documented routine movement of radio-collared wolves across the
nearly contiguous available suitable habitat between Canada, northwestern
Montana, and central Idaho (Pletscher et al. 1991, p. 544; Boyd and
Pletscher 1999, pp. 1095-1096; Sime 2007). In addition, there are several
shared transborder packs, between Canada, Montana, and Idaho. While the
GYA is the most isolated core recovery area within the NRM DPS (Oakleaf
et al. 2005, p. 554; vonHoldt et al. 2007, p. 19), radio telemetry data
demonstrate that the GYA is not isolated as at least one wolf naturally
disperses into the GYA each year and at least 4 radio-collared non-GYA
wolves have bred and produced offspring in the GYA in the past 12 years."
(1996-2008). Id. at 15161.
The plaintiffs’ claims in this case presupposes the existence of a population
meeting the requirements of section 10(j). If there is no such population due
to the genetic and geographical connectivity cited by the United States of
America in Defenders of Wildlife v. Salazar, CV-09-77-M-DWM, the court’s
resolution of the issues raised in the plaintiffs’ complaint would be nothing
more than an advisory opinion. If the population at issue does not meet the
statutory requirements for 10(j) status, there would be serious questions
about whether this case presents a live controversy. Therefore,
IT IS HEREBY ORDERED that each party shall file a brief showing cause
why this case should not be dismissed as moot due to the absence of a
population meeting the statutory requirements for 10(j) status. Simultaneous
brief submitted by February 22, 2011 and shall not exceed 2,500 words.