National Cattlemen's Association sues U.S. Fish and Wildlife Service

Dear Mr. Bangs,

This letter contains the comments of the National Cattlemen's Assocation (NCA) pertaining to the U.S. Fish and Wildlife Service (USF&WS) proposals to introduce the gray wolf into the Yellowstone National Park and the Central Idaho Wilderness Areas. NCA is the national spokesman for the beef cattle industry. It represents 230,000 professional cattlemen, including members of 74 affiliated state cattle and national breed organizations...

I. Introduction

The NCA agrees with the USF&WS that there is local opposition to wolf introduction efforts into the Yellowstone National Park and Central Idaho Wilderness areas. Much of the concern is about potential restriction and prohibitions on federal and private activities in areas within and surrounding the introduction sites. While introduction of the wolf as a nonessential, experimental population (according to Section 10(j) of the Endangered Species Act) addresses some of these concerns, the introduction proposals offered by the USF&WS do not provide adequate protection for landowners, including livestock ranchers, from losses they are certain to incur. The wolf proposals also do not provide for federal compensation for property losses caused by the wolf's reintroduction. The NCA must therefore oppose these proposed rules for introduction of gray wolves into the Yellowstone National Park and Central Idaho Wilderness areas.

NCA's policies regarding introduction of wolves are clear. NCA would support petitioning the USF&WS to delist the wolf and return the management of the species to the states and that in the event delisting is not accomplished, NCA remains strongly opposed to any expansion of existing parks or designations of "ecosystems" that give priority to wolf recovery efforts over economic values. NCA is also supportive of eliminating the current inequity which imposes stricter standards and more burdensome procedures on private landowners and permittees than on government agencies. NCA seeks immediate change to ensure that releases or introductions of populations do not result in adverse impacts on established land use and values and the public welfare. Finally, NCA supports the rights of landowners to protect themselves, their families, livestock and property from all species, including those listed under the Endangered Species Act. While the proposed rules allow individuals the right to protect themselves, these rules do not adequately meet any of the other policy concerns of NCA.

II. Wolf "Take" Permits

Despite USF&WS assurances, these proposals do not adequately protect pets and livestock from wolf predation. There is difference in the management of fully protected wolves and wolves protected under experimental status.

As you are aware, the federal penalties for killing an endangered species are severe and can include up to a $100,000 fine, one-year imprisonment, loss of federal grazing permits and loss of other privileges and personal property. Under the proposals, there are only very limited conditions during which the public could harass or kill wolves attacking livestock. There are also legal questions which may prohibit a private land owner or permittee from obtaining a permit.

The proposed rules allow landowners to kill or injure a wolf on this private property, but only if very restrictive conditions are met. First, the landowner must actually catch the wolf "in the act of killing, wounding or biting livestock." As wolf biologists point out, this is unlikely to occur. Second, the wolf must weigh more than 50 pounds, which can be difficult to determine, even for practiced wolf biologists. Making a wrong determination could result in civil or criminal penalties under the Endangered Species Act. Third, livestock wounded or killed must be provided as evidence within a 24-hour period, and the USF&WS must make a determination that the cause of death or injury was by attack from a wolf or wolves.

Permittees and lessees of federal lands face even more difficulty protecting their livestock. In addition to the requirements made for private landowners, the permittee or lessee must first obtain a permit from the USF&WA. Furthermore, this individual cannot obtain such a permit until six breeding pairs of wolves are established in the experimental population area. He or she must document that the kill was caused by wolves and that "proper husbandry practices" have been applied. The USF&WS also must have unsuccessfully attempted to resolve the problem. Finally, each and every subsequent livestock loss must be documented before additional permits are issued. Combined, these conditions make it extremely difficult to protect livestock from predation.

There is the question of whether the service will be able to issue a permit. The Endangered Species Act (ESA) defines an "experimental population" as "any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when the population is wholly separate geographically from nonexperimental populations of the same species. [ESA, section 10(j)(1)]. Where part of an experimental population overlaps with a natural population of the same species, "specimens of the experimental population will not be recognized as such while in the area of overlap" [50 CFR 17.80(a)]. Thus, under both the statute and the regulations, a population cannot be designated or treated as "experimental" unless it is entirely geographically separate and apart from others of the same species. These statutes and rules have been strictly adhered to with the blackfooted ferret and the red wolf.

The presence of wolves has been documented by the government in both areas targeted for introduction. The USF&WS states that the Missouri River creates a geographical barrier for the proposed experimental population. However, wolves currently are moving unobstructed down the Rocky Mountain range west of the Missouri and toward areas designeated as experimental, thus disproving this statement. The USF&WS states that naturally occuring wolves crossing into the experimental area will be treated as part of the experimental population. This statement cannot be backed with statute or regulation and probably will be challenged within the courts. The presence of wolves--whether naturally occurring or illegally released from captivity--in the proposed introduction area will not only prohibit the issuance of permits to kill wolves but also will create serious doubts as to whether a designation of "experimental population" can be made for the wolves proposed to be released. The legality of kill permits, as with the "experimental population," already is being cast into doubt by the fact that notices of intent to sue have been filed for each proposed introduction area by groups including the Sierra Club.

III. Harassment and Compensation

Since this proposal contains no provision for compensation for losses due to wolves, the federal lands permittee or lessee will have to incur significant losses to be eligible to obtain a permit to protect their property.

The proposal would allow private landowners and livestock permittees on federal lands to "harass" wolves, but only if such wolves exceed 50 pounds. This could be interpreted to mean that, where pups are present, no action can be taken to protect pets or livestock because such action would be construed as "harassment" of the pups, which carries civil and criminal penalties. If harassment is to be allowed, provisions should then be extended to include wolves weighing less than 50 pounds.

The proposals allow for removal of "problem wolves" (wolves that attack livestock or pets at least twice), but again the conditions are limited. First, there must be "clear evidence" that wounded or killed livestock were attacked by wolves, and future losses are likely to occur without removal of the wolf. Such evidence is not always available, and carcasses are not always found. Canadian research shows that less than 60 percent of the livestock killed by wolves can be found.

There can be no artificial or intentional feeding of wolves. This means that all livestock carcasses must be immediately disposed, a condition impossible to fully comply with on large ranching operations. Wolves seen feeding on a carcass may thus be considered to have been attracted to the area by the carcass, especially if a substantial portion of the carcass has been consumed and kill identification cannot be made. Even if all the stated conditions are met and a permit can be issued, the property owner still must bear the cost of lost livestock or pets. The proposal does not provide for compensation to people who lose livestock or pets to wolf predation. The service states that private compensation programs for wolf predation losses will be encouraged, but there is no guarantee these programs will continue after wolves are introduced.

IV. The Introduction of Wolves in Montana, Wyoming and Central Idaho Will Result in the "Taking" of Other Listed Species

Section 9 of the Endangered Species Act prohibits the "taking" of endangered or threatened species. "Taking" prohibited under this section of the act is broadly construed and defined to include activities that "harm" or "harass" listed species. The USF&WS and the courts have applied the "taking" prohibition on federal lands to include activities that modify habitat of a listed species or that consume the same food base as that of the listed species.

The gray wolf is at the top of the food chain in any habitat it occupies, and therefore has impact on every other species that occupy the same habitat. The Final Environmental Impact Statement notes that a number of other listed species such as the salmon, grizzly, and woodland caribou occupy the same habitat as proposed for wolves. The EIS also describes that the introduced wolves will have adverse impacts on these native listed species. To illustrate this point, the EIS states: "Grizzly bears and wolves have been recorded to kill one another..;" "wolves have been documented to eat spawning salmon;" "wolf predation, in combination with other factors, has contributed to the decline of some woodland caribou populations." The Woodland Caribou Recovery Plan also acknowledges that the wolf recovery effort could prevent recovery of the caribou population in northern Idaho. This fact is compounded by the USF&WS's proposal to "hard" release wolves captured in Alberta and British Columbia into the Central Idaho Wilderness. It has been documented that after a hard release, wolves often move in the direction from which they were captured. This means that wolves could move into the critical habitat area of the woodland caribou.

The USF&WS's wolf recovery proposals would place other listed species such as the caribou, grizzly, and salmon at risk. The introduction of a species known to cause harm to these listed species is therefore in violation of Section 9 of the Endangered Species Act.

V. Proposed Rules and Environmental Impact Statement are Faulty

These proposals are faulty because the Final Environmental Impact Statement did not adequately present the need for the introduction of this subspecies of wolf into Wyoming, Montana, and Idaho, especially when North America already sustains healthy and growing populations of these wolves in Canada and the United States. The introduction efforts of the USF&WS will not save this wolf subspecies from extinction. The service says in its own documents that it intends to import gray wolves from Canada, where the population numbers are in the "tens of thousands." In addition, there are more than 7,000 gray wolves in Alaska and approximately 2,000 wolves in Minnesota. Based on these facts, the service concludes that "taking fewer than 100 wolves from these areas will pose no threat to the survival of the species in the wild." Thus, wolf introduction does not serve the purpose of the Endangered Species Act. This subspecies of the gray wolf is not in danger.

Furthermore, the director has made no finding that the primary habitat has been unsuitably and irreversibly altered or destroyed under section 10(j) of the ESA and within 50 CFR 17.8(a). Therefore the act requires that any "reintroduction" be within the probable historic range of the animal to be "reintroduced." USF&WS's records strongly indicate the wolf subspecies--Northern Rocky Mountain wolf (Canis lupis irremotus)--which once inhabited much of Idaho, Montana, Wyoming and parts of South Dakota, Washington, and Oregon, is believed to be extinct. The wolves targeted for introduction are to be imported from Canada and these wolves are larger, different colored and mitochondrially differentiated from the subspecies that inhabit the area historically. There is litte question that if this introduction takes place, it will occur outside the wolf's "historic range" as termed within the ESA.

The Records of Decision nor the proposed rules also do not state that these releases will further the conservation of the species. Section 10(j)(2)(A) only allows introduction of a species as an experimental population in areas outside its current range "if the Secretary determines that such a release will further the conservation of the species." This finding did not occur and, in fact, cannot occur because North America's gray wolf population is stable and increasing.

Wolves cannot be introduced for the sole purpose of restoring alleged ecosystem function. The ESA is clear in its statement that "ecosystems upon which endangered species and threatened species depend may be conserved." This subspecies of wolf is not dependent on the habitat identified in these proposals for survival.

The EIS, and therefore the proposals, are faulty because there is only limited assessment of the issue of hybridization. This is a serious issue as scientific evidence from Minnesota indicates that more than 60 percent of the wolves analyzed in that state are hybrids to some degree. While the proposals discuss removal of wolf hybrids, introduction of pure wolves for "conservation" purposes should not occur if such efforts cause the possible dillution of the genetic structure of the gray wolf through hybridization.

The USF&WS's statement that this gray wolf reintroduction would not conflict with existing or anticipated Federal Agency actions or traditional public uses of park lands, wilderness areas or surrounding lands is absurd. In the 1992 report, Trends and Management of Wolf-Livestock Conflict in Minnesota, the USF&WS re-evaluated its scientific data regarding wolf predation and found that earlier data, on which this proposal is based, was inaccurate. Livestock predation in earlier scientific models was not statistically significant. However, the heavy livestock losses which occured in 1987, 1989 and 1990 forced the service to modify earlier statistical conclusions regarding wolf predation. USF&WS's updated data concluded that livestock losses increase with time and distribution. The service also stated that prevantative wolf control measures were needed in Minnesota where up to 30 percent of the Minnesota wolf population would have to be taken each year to prevent conflict. This control has not occured to date, and wolf predation for the first half of 1994 has increased to its highest level in the history of the program. Finally, the USF&WS concluded that since factors in Minnesota are different from those in the West, states such as Montana, Wyoming and Idaho can expect heavier losses than those experienced in Minnesota.

Current Animal Damage Control (ADC) programs will be restricted by the introduction of wolves. On page 42112, the USF&WS states ADC activities could adversely impact wolf recovery. On page 42113, the Service states that use of toxicants lethal to wolves would be permitted. M-44s are a major tool used to control coyote predation on cattle and sheep, and the loss of this tool will have a major impact on the livestock industry by reducing our ability to control other predators.

The Bureau of Land Management's 1993 shutdown of the ADC program demonstrates the extreme impact the halt of ADC activities has on our industry. After shutdown of the ADC program on BLM lands, livestock predation losses increased dramatically. Much of this increased loss was due to regulations and appeals reducing ADC's ability to operate. Wolf introduction will further complicate ADC operations resulting in tens of millions of dollars in losses to the livestock industry. These impacts were not properly analyzed by the USF&WS, making the EIS and the introduction proposals faulty.

Overall, impacts will be greater than those stated within the proposals as these proposals encompass vast areas and affect a significant number of people. The Yellowstone experimental population area includes the entirety of Wyoming and over 50 percent of Montana. Similarly, four-fifths of Idaho is included in the Yellowstone and cental Idaho Wilderness areas. Litigation involving the grizzly has stopped logging, oil exploration, ski resort development and other traditional uses of federal, state and private land. These actions will continue as natural populations of the wolf expand into areas designated as experimental habitat.

VI. National Wildlife Refuges

Major portions of the states of Idaho, Montana and Wyoming are designed as habitat for experimental wolf populations. Within this habitat, at least 20 National Wildlife Refuges exist on which the gray wolf will receive full protection under the ESA. One such area is the National Elk Refuge near Jackson Hole, Wyoming. This refuge in northwest Wyoming serves as a major area of supplemental feeding for elk and moose, and these animals will suffer a major impact from gray wolf predation. While measures within the proposals allow state and tribal agencies to control extensive predation on ungulate species, no measures are provided to allow control activities on National Wildlife Refuges.

Second, other uses such as hunting, grazing and recreation occur on many of these refuges. The proposed rules will have a major impact on these activities since the wolf is considered fully protected within the refuge boundary.

Finally, there are no provisions within the proposed rules that prohibits the service from moving problem wolves to wildlife refuges and creating conflict or removal of other uses within the refuges. The proposals may actually provide the service with the incentive to move wolves to these areas to accelerate introduction of the gray wolf throughout the entirety of Wyoming, Montana, and Idaho. Wolves translocated to the Seedskadee, Ramforth and Hutton L. National Wildlife Refuges in southern Wyoming can be further used to initiate current introduction efforts in Colorado. Without safe gaurds in addition to those mentioned within the proposed rules, NCA must again oppose the proposals for introduction.

VII. Conclusion

If the introduction does not benefit the conservation of the wolf, then the introduction is for purposes other than those served by the Endangered Species Act and should not proceed. These proposals also leave the responsibility of feeding and sheltering the wolf with groups such as the livestock industry, making the current proposals unacceptable.

NCA believes the best alternative proposed under the EIS is the no-wolf option. By passing Congressional legislation to remove wolves in Montana, Wyoming and Idaho from the endangered species list and allowing for natural migration, you allow the state game and fish commissions to manage the wolf as a big game population. This option needs to be further considered.

Sincerely,

William G. Myers III
Director, Federal Lands Committee
National Cattlemen's Association