Wyoming can’t be trusted to keep its promises on managing wolves outside of federal Endangered Species Act protections, environmentalists argued today before a panel of federal appellate judges.
The U.S. Fish and Wildlife Service and Wyoming are appealing a lower court’s 2014 decision to restore federal protections to wolves in the state. The court ruled the agency couldn’t base a decision to delist a population of wolves on a nonbinding management plan.
Timothy Preso, an Earthjustice attorney representing Defenders of Wildlife, asked the U.S. Court of Appeals for the District of Columbia Circuit to uphold the decision.
“Right now we’re in a trust-us mode,” Preso told the three-judge panel. “The Endangered Species Act is not a trust-us statute.”
The Fish and Wildlife Service has tried since 2008 to turn northern Rocky Mountain wolves in Wyoming over to state control, but it’s been rebuffed by the courts. Wolves in Montana and Idaho are already under state control after Congress ordered FWS to delist the populations there.
The agency says it’s worked with Wyoming in recent years to help the state make changes to its regulatory structure, including the establishment of a permanent trophy-game area, that will ensure the protection of wolves outside of the Endangered Species Act.
Wyoming’s word a commitment or just a promise?
Wyoming has committed to maintain at least 10 breeding pairs and at least 100 wolves, not including the population in Yellowstone National Park and the Wind River Indian Reservation.
Judges focused today on whether FWS should have required Wyoming to ensure a buffer above a minimum population level in its management plan.
When it delisted the species, FWS decided against requiring the numeric buffer. The agency reasoned the state would maintain a buffer because it’s practical.
“They don’t want to get close to the edge. That’s been the experience in Montana and Idaho,” said Joan Pepin, a Department of Justice attorney who is representing FWS.
But Judge Judith Rogers, an appointee of President Clinton, pointed to Wyoming’s court briefs that argue the state has no legal obligation to maintain the population above the minimum level.
Wyoming’s argument to the court “leads me to some concern about how firm is this commitment,” she said.
Rogers also faulted FWS’s interpretation of its authority, saying it appears the service was “shutting eyes” to the section in the law that requires basing a decision on the state’s regulatory mechanisms.
Jay Jerde of the Wyoming attorney general’s office argued there was nothing in the law requiring a buffer.
He echoed FWS’s argument that the state would maintain a buffer anyway. He testified that the state has several tools at its disposal to manage the wolf population, including restricting hunting and denying permits to kill wolves to protect livestock.
But Judge Cornelia Pillard, an appointee of President Obama, several times questioned Wyoming’s ability to use those tools if it didn’t have a legal duty to manage a buffer.
Neither FWS, Wyoming nor Defenders of Wildlife agreed on what an adequate buffer actually was.
“Wildlife management is not an exact science,” Jerde said.
Wyoming would determine a buffer on a year-by-year basis, Jerde said, taking into account the numbers of wolves outside of Yellowstone National Park and hunting figures.
But Preso, the attorney for Defenders, argued that Wyoming had a history of hostility toward wolf management and that the population under state control would be like a “sieve,” constantly losing individual wolves.
A legally required buffer is needed, Preso argued, to act as a “counterweight” to inadequate provisions in the state management plan.
But Pillard questioned the relevance of the state’s historical actions toward wolves.
“I’m not sure how and whether that bears on the discussion before us today,” she said.
Judge Janice Rogers Brown, an appointee of President George W. Bush, heard arguments with Rogers and Pillard.
Amanda Reilly reported this story for E&E Publishing — Ed.