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Editorial: Wolf Delisting Court Hearing – Sense and Nonsense

[large thumbnail url=”editorial-wolf-delisting-court-hearing-sense-and-nonsense” filename=”editorial” year=”2010″ month=”06″ day=”22″] [thumbnail icon url=”editorial-wolf-delisting-court-hearing-sense-and-nonsense” filename=”news” year=”2010″ month=”06″ day=”22″] Louisa Wilcox, a senior wildlife advocate for NRDC, wrote an interesting perspective piece for her blog on the NRDC switchboard giving an insiders view of the proceedings in Judge Molloy’s courtroom.

Wolf Delisting Court Hearing: Sense and Nonsense
by Louise Wilcox

Courtrooms are interesting places, where there is a premium placed on rational argument and the law. Judge Donald Molloy made that point very clear in a remark to the federal attorney at last week’s wolf hearing: “I understand the practical argument, I understand the political argument. Those two things are very, very clear. But what I don’t understand is the legal argument. That’s not very clear.” Despite this directive, it was interesting how often non-legal, political issues crept up throughout the 3 hour event, and how many arguments failed the simple test of rationality.

Fourteen conservation groups, including NRDC, were brilliantly represented by Earthjustice (EJ) attorneys. Although Doug Honnold did the argument, the other EJ attorneys, Tim Preso, Jenny Harbine and Sean Helle, were indispensible in assembling a powerful case demonstrating that Idaho and Montana wolves were prematurely delisted, and that they will be vulnerable to excessive killing under state plans and laws, which are legally unenforceable. Is it rational for the states to manage wolves when their plans are not legally binding or enforceable? When their primary defense is a “trust us” argument? Was not the failure of the states to recover wolves a major reason that wolves got listed in the first place? Given the states’ track record, what rational person would be satisfied with a “trust us” defense?

The day was filled with different levels of irrationality. Doug made much out of the unreasonable decision by the Fish and Wildlife Service (FWS) to establish a recovery goal of 300 wolves (roughly 30 breeding pairs) in the Northern Rockies, and 1500 wolves in the Midwest, where the landscape is far more constrained and contains more humans (and livestock). Honnold said, “FWS pulled its Northern Rockies wolf recovery number out of thin air. Due to the political pressure from the states, FWS has fiercely defended that number – 300 wolves – to this day, even though the best science has demonstrated this number is in error.” Honnold added, “you can go back and read the FWS 1987 recovery plan and all the record documents relating to it, and there is simply not explanation for why 300 wolves/30 breeding pairs was selected. None whatsoever. Why 300? Why not 100, or 500, or 1500 like the Midwest?”

The federal government’s basic response to this argument: we are the government, we have the flexibility to do what we want.

That’s rational? Just because you’re the government, that means that your decision is rational?

There were a number of interesting, but similarly irrational arguments made by the federal attorney defending the government’s decision to delist wolves in Montana and Idaho. O.K., so I’m not an attorney, nor have I read all of the briefs, which are hundreds of pages, given the number of intervenors. But I can tell a logical disconnect just a clearly as a wolf can spot an elk.

For example, even though the Endangered Species Act (ESA) listing applies to wolves on land in the lower-48 states only (not Canada), the federal attorney asserted that wolves in the lower-48 states are connected to Canada, and that the government relies on Canada wolves. Huh? Fish and Wildlife Service’s own rules established that that was not the case. The statement was not just nonsensical, it was flat wrong.

A bit of background is in order before discussing the next bit of the irrational. Wolves in Central Idaho and the Greater Yellowstone area were designated as “experimental, nonessential” populations, when they were reintroduced under the 10(j) provision of the ESA, from Canada in 1995 and 1996. They were never treated on a state-by-state basis, but on the basis of populations that cross the state boundaries of Idaho, Montana and Wyoming.

This was important because of the far-ranging nature of wolves, and because to get to recovery, the government recognized that a handful of wolves in Yellowstone and central Idaho was inadequate. Consistent with this theory, in its 1987 plan for the Northern Rockies, the government called for a “meta-population” of connected wolf populations in central Idaho, Glacier and Yellowstone.

Regarding this matter, Judge Molloy asked the federal attorney: “is the theory of separating Wyoming from this rule predicated on Wyoming being a 10(j) (experimental, non-essential) population?” Reading from the statute, Molloy said “10(j) only applies when populations are separated from other populations… It seems like you can’t designate wolves as a 10(j) population in Wyoming, because they’re mingling with non-protected wolves. Don’t they stop being experimental/non-essential when they co-mingle with other non-protected populations? “

The federal attorney responded that the government desires flexibility, “so we don’t need complete separation. It helps to have exchange between populations, but for them also to be isolated. Here is a partially isolated population with exchange. The Wyoming wolf population of 100 wolves is viable.”

Irrationality is evident on several levels here. First, how can you be connected and isolated? Isn’t that like being kinda pregnant? Second, the delisting rule relied on a regional recovery goal of 300 individuals. The Fish and Wildlife Service has never said that 100 wolves in Wyoming constituted a viable population by itself. This statement was irrational, biologically indefensible and wrong.

And there’s more yet.

Question from the judge to the federal attorney: “what if Montana got down to 90 animals from disease or other factors…then what”?

Response from the federal attorney: “the states can limit mortality. They can stop hunting.”

What do you mean “can”? The states would not automatically stop hunting if numbers got that low? And what about human/livestock conflicts, which is the largest source of mortality? Is there nothing that Montana could do/are committed to do on that front to reverse a decline, despite ample evidence that proactive, non-lethal and husbandry practices can reduce or alleviate problems? So, it is rational for Montana to be required to do nothing to alleviate the largest source of conflicts and wolf mortality in the state?

Taking this argument on its face, it appears that nothing is required of the states if the bottom falls out of wolf recovery. Given Montana’s plan to greatly increase the wolf hunt this fall (while committing to no new efforts to reduce livestock conflicts), how can we rationally be assured a healthy future for wolves?

In case you have not yet heard enough, here’s another taste of the irrational. In remarks to the judge, the attorney representing the state of Montana commented: “If you can’t delist wolves in Montana, you’ve undermined the Endangered Species Act.”

Huh? Wasn’t the whole idea behind designating a population area for recovery on a regional basis, with three connected populations in Yellowstone, Glacier and central Idaho, developed under the direction of the ESA? How does being consistent with ESA policies undermine the Act? Am I missing something here, or does it just not make sense?

But there was one statement from the federal attorney that made perfect sense.

Question from the judge to the federal attorney: “I understand the problem is political. Wyoming is doing what they want to do. Can the political problem be addressed by the Endangered Species Act, in terms of adequate regulatory mechanisms?”

As part of his response, the federal attorney said: “we don’t have a road map to delist a species.”

Hey, he said it, not me… This remark may not have helped the federal government’s side, but he hit the nail on the head. Given our experience in the convoluted and torturous delisting process over the last 4 years, it is clear that the government has no good road map of how to get a recovery/delisting plan that works, includes trigger mechanisms to prompt responsive actions if things go wrong, and that ensures a healthy wolf population in the long term.

Is that too much to ask, for a species that so many of us have spent so much blood, sweat and tears to recover?

Here’s to a return to common sense and developing a rational map toward wolf recovery — a tall order in the case of wolves, I admit…

This blog post originally appeared on the NRDC Switchboard Web site

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