Predictably, the Fish and Wildlife Service’s recent decision to strip wolves of Endangered Species Act protections in Montana and Idaho—but to leave those protections in place in Wyoming—not only angered us, but plenty of folks in Wyoming as well; and the cowboys in the cowboy state are probably going to get even angrier as the other shoe begins to drop.
Not to get all lawyerly on you, but when the federal government reintroduced wolves to the Northern Rockies in the early 1990’s they designated the whole population an “experimental, nonessential, population” under Section 10(j) of the Endangered Species Act. That’s going to be a hard classification to maintain if the wolf delisting rule stands up to scrutiny.
Being an experimental, nonessential, population has quite a bit of advantages, so far as a state like Wyoming is concerned. Experimental populations are treated as threatened, rather than endangered, species (meaning there are fewer restrictions on the ability to kill or harm them). And, for the most part, “nonessential” experimental populations are not even given threatened species status; nor do nonessential populations get the benefit of critical habitat protection under the Act.
Relying on their experimental and nonessential status, the U.S. Fish and Wildlife Service issued a “special rule” for gray wolves in the northern Rockies. These regulations give an enormous amount of discretion and flexibility to Wyoming, Montana, and Idaho to manage its wolf populations, including killing wolves whenever they are deemed to have had an “unacceptable impact” on wild ungulate (deer, elk, etc.) herds, regardless of whether these impacts lead to actual population declines or wolves are the primary cause of the impacts.
But there’s a catch. In order to qualify as an “experimental” population under the Endangered Species Act the experimental animals must be “wholly separate" geographically from nonexperimental populations of the same species.” And, in order to be a nonessential experimental population, it must be found to be “not essential to the continued existence of a species.”
With the decision to delist wolves in Montana and Idaho, however, both of these qualifications vanished. No longer are Wyoming wolves “wholly separate” from a nonexperimental population of wolves, since Wyoming wolves share the Yellowstone ecosystem with wolves in Montana and Idaho . Wyoming wolves also can’t be considered “not essential to the continued existence” of Northern Rocky wolves, because, when it decided to keep wolves in Wyoming listed, the Fish and Wildlife Service found that they were.
What this means is not only was Wyoming left out of the Fish and Wildlife Service’s wolf delisting decision but, as a necessary consequence of that decision, it may find that its management options for wolves just got much, much narrower. All of which, of course, is simply another example of why the Fish and Wildlife Service never ought to have gone down the road of delisting wolves on a state-by-state basis in the first place.