Sierra Club joins other conservation groups in lawsuit against wolf reintroduction programA letter from the Sierra Club Legal Defense Fund to Bruce Babbitt, Secretary of the Interior, and Mollie Beattie, Director, U.S. Fish and Wildlife ServiceSeptember 7, 1994 Dear Secretary Babbitt and Director Beattie: On behalf of the Sierra Club, The Wilderness Society, Idaho Conservation League, National Audubon Society, Predator Project, Sinapu, Michael Medberry, and Louisa Willcox, we hereby provide you with notice...that you are in violation of the Endangered Species Act...by approving the reintroduction of gray wolves to central Idaho on an experimental, nonessential basis..... This approval is improper and illegal in to fundamental respects: (1)the plan invokes section 10(j) whose use is proscribed when, as in the central Idaho Experimental Nonessential Population Area ("Idaho Experimental Area"), non-introduced (or "natural") members of the species are present; and (2) the plan withdraws or denies full ESA protections from animals legally entitled to those protections, including members of overlapping introduced and natural wolf populations, naturally recolonizing wolves already present within the Idaho Experimental Area, wolves that will migrate into the Idaho Experimental Area in the future, and the offspring of reintroduced and naturally recolonizing wolves within the Idaho Experimental Area. We believe that, as a result of its deficiencies and illegalities, the reintroduction project will either fail altogether in its effort to recover a viable wolf population in central Idaho or, at the very least, lead to the unnecessary death and destruction of significant numbers of wolves before recovery is achieved. We urge you to remedy these legal and biological failings and to augment Idaho's existing wolves with wolves that enjoy the full protections due them as a federally listed endangered species. I. Background The historic range of the gray wolf stretched from the east to west coast and south to what is now Mexico City. During the late 19th and early 20th centuries, however, the gray wolf was the victim of a concerted extermination campaign by federal, state, and local authorities who viewed the wolf as a threat to their citizenry and to livestock interests. Man's elimination of native ungulates (the wolf's prey base) and his conversion of wildlands to agricultural use also hastened the animal's demise. The gray wolf was extirpated from the western states by 1930. With the exception of those in Minnesota, the gray wolf is listed as an endangered species in the lower-48 states. In the early 1980s, wildlife biologists noted an increase in what had previously been sporadic sightings of gray wolves in northwestern Montana. Shortly thereafter, in 1986, Montana's first wolf den in more than 50 years was discovered in Glacier National Park near the Canadian border. Since that time the wolf population in northwestern Montana has expanded to approximately 65 wolves comprising at least five different wolf packs. The last several years have witnessed a like return of gray wolves to central Idaho. U.S. Fish and Wildlife Service personnel charged with monitoring wolf presence in Idaho have released documents...demonstrating that:
...Although there has not yet been confirmed breeding activity within the Idaho Experimental Area, the foregoing data has led U.S. Fish and Wildlife Service personnel in Idaho to conclude that such activity is likely within the next 1-5 years... II. The Central Idaho Reintroduction Plan Violates the Endangered Species Act A. The U.S. Fish and Wildlife Service May Not Introduce Wolves to Central Idaho on an Experimental Basis Because the Idaho Experimental Area is Neither "Wholly Separate Geographically" Nor "Outside the Current Range" of Existing Wolf Populations The gray wolf in the lower-48 states is, except for those in Minnesota, listed as an endangered species under the ESA, 16 U.S.C. S 1531 et seq. As such, the wolf enjoys a variety of protections, including the protections resulting from an agency's duty to engage in formal section 7 consultation and the production of a formal biological opinion concerning activities that could harm the wolf, the cessation of all activities subject to the consultation requirement pending the issuance of a biological opinion or the withdrawal of the action, and the possibility that critical habitat will be designated. Additionally, the taking of endangered species is statutorily prohibited under the ESA. Those protections would be significantly weakened or lost entirely if gray wolves are introduced to central Idaho on an experimental nonessential basis pursuant to section 10(j) of the ESA, 16 U.S.C. S 1539 (j). Section 10(j), which allows for the reintroduction of an endangered or threatened species to an area without providing the introduced animals the full ESA protections that they would otherwise enjoy, is designed to provide management flexibility to the Fish and Wildlife Service in order to mollify an otherwise hostile local populace. The premise behind the section, then, is that a populace will be more accepting of the reintroduction of an endangered or threatened species if the applicable ESA protections are loosened and there is no fear, for example, that development will be slowed by the designation of critical habitat. It is certainly true that there is significant opposition to wolf reintroduction by livestock interests who, despite all available evidence, fear significant losses from wolf depredation. It is likewise certain, though, that naturally migrating gray wolves are already present within the Idaho Experimental Area and that this presence forecloses the Service's ability to use section 10(j) as currently proposed. Section 10(j) (1) explicitly and unambiguously states that an experimental population may be reintroduced to an area "only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species."...Moreover, section 10(j)(2)(A) adds the proviso that a species may only be reintroduced on an experimental basis when the reintroduction area is "outside the current range" of the species....Given the confirmed (and increasing) presence of wolves within the Idaho Experimental Area, it is difficult to fathom just how it could be argued that this area is outside the current range of the wolf and even more difficult to comprehend how the area could be said to be "wholly separate geographically from nonexperimental populations."... ...The Service's response has been that section 10(j) is appropriate unless there are two sets of breeding pairs within the experimental area that successfully breed for two consecutive years...There is, however, absolutely no legal basis for whatsoever for this position... B. The Central Idaho Reintroduction Plan Illegally Withdraws or Denies Full ESA Protections From Wolves Legally Entitled to Those Protections The Fish and Wildlife Service compounds the impropriety of its use of section 10(j) by decreeing that all wolves within the Idaho Experimental Area will be treated as members of the experimental nonessential population regardless of whether they were in fact artificially introduced by the agency or not. This is flatly contrary to section 10(j)'s implementing regulations which mandate that: "Where part of an experimental population overlaps with natural populations of the same species...specimens of the experimental population will not be recognized as such while in the area of overlap. That is, experimental status will only be recognized outside the areas of overlap." ..The import of this language could hardly be more clear; where introduced and naturally occuring wolves overlap, as they would in a great degree in the Idaho Experimental Area, all of the animals--introduced and natural alike--must be accorded the full protections due to them under the Act as an endangered species. Unfortunately, rather than heed Congress' unambiguous call to provide full ESA protections to all animals when natural and reintroduced populations overlap, the Service goes in precisely the opposite direction and would instead withdraw those protections from every wolf within the Idaho Experimental Area. This de facto delisting of migrating wolves has no legal basis whatsoever; the lone mechanism whereby the Fish and Wildlife Service may eliminate or decrease a listed species' ESA protections is by reclassifying the species from endangered to threatened or by delisting the species altogether... Congress' effort to ensure that section 10(j) never serves to decrease species protection is further evident in its direction that the offspring of reintroduced and naturally colonizing wolves may not be treated as part of the experimental population but rather must be accorded full ESA protections...This provision is likewise ignored by the central Idaho reintroduction proposal which would treat any such offspring as members of the experimental nonessential population so long as they remained within the Idaho Experimental Area.... III. Conclusion We applaud the U.S. Fish and Wildlife Service's continuing effort to recover the gray wolf and return it to its rightful place in the central Idaho wilderness. Nevertheless, we must challenge the currently proposed methods for reaching that goal. The Service's approach ignores the available scientific data concerning natural wolf recolonization in Idaho. Rather than promoting that ongoing effort, the Service has opted to trade away the habitat and other ESA protections that could foster successful recovery in a misguided and illegal attempt to garner the support of the region's livestock community. Because the long-term persistence and survival of any species is ultimately tied to the protection of its habitat, this approach is doomed to failure. Fundamentally, the Service seems to believe that the habitat and section 9 taking protections afforded by the ESA to listed species are inimical to wolf recovery in Idaho. Because we believe that reducing human-caused mortalities and affording ture long-term habitat protections to wolves are essential to wolf recovery and that the legal mechanisms of the ESA are the most effective measures to achieve these goals, we must oppose the Service's current Idaho wolf reintroduction proposal. Very truly yours,
Douglas L. Honnold Sierra Club Legal Defense Fund is an independent, environmental law firm and is not part of the Sierra Club |
