Expert: Impending wolf suit could stick
Conservation groups have history working in their favor, independent attorney says.
By Mike Koshmrl, Jackson Hole, Wyo.
September 12, 2012
A threat to genetic diversity and legal precedent could undermine a decision to give Wyoming control of its wolf population, a Vermont Law School professor says.
As expected, on Monday environmental groups filed a notice of intent to sue the U.S. Fish and Wildlife Service for lifting wolf protections and opening the way for a hunt in Wyoming. Earthjustice, which has won a Wyoming wolf lawsuit in the past, remains dissatisfied with the Wyoming plan to manage wolves as predators in 85 percent of state when federal protections end Sept. 30.
The predator classification will allow anyone to kill wolves at any time by any means, no license required.
In a trophy-game area in northwest Wyoming, a hunt capped at 52 animals will begin Oct. 1.
A third area south of Jackson Hole is a trophy-game zone from Oct. 1 to the last day in February and a predator zone the rest of the year.
Because of Wyoming’s “stubborn” commitment to the predator zone plan, the lawsuit will make a “really strong argument,” said Pat Parenteau, an attorney who specializes in Endangered Species Act law.
“There are a couple things about this decision that give Earthjustice a strong hand to play,” said Parenteau, who also teaches at Vermont Law School’s Environmental Law Center. “One is that the U.S. Fish and Wildlife Service itself made some very critical comments about the lack of genetic diversity in the population.
Same as 2003 plan
“The second thing is this Wyoming plan is really no different than the 2003 plan that Fish and Wildlife trashed,” he said. “It’s fundamentally not that different.”
The 61-page notice released by Earthjustice includes a four-point rationale for the challenge.
“Because wolves in the northern Rockies, particularly those in Wyoming, are endangered by future inadequate genetic exchange, FWS’s decision to delist Wyoming wolves is arbitrary, capricious and contrary to the best available science,” the document states.
The first contention in the notice says that wolf numbers northern Rocky Mountain states are required to maintain — in Wyoming, 10 breeding pairs and 100 wolves outside Yellowstone National Park and the Wind River Reservation — are too low to constitute a recovered population.
The second contention is that Wyoming’s management plan doesn’t adequately limit the mortality of dispersing wolves. Earthjustice’s managing attorney, Tim Preso, spoke to that point.
“Any wolf trying to come around the south end of the Tetons is going to walk into the free-fire zone more than half the year,” Preso said. “Wolves typically take about five months to make that kind of dispersal.”
The third claim in the notice is that the Fish and Wildlife Service’s safeguard for preventing inbreeding — the goal of achieving one effective migrant per generation — is not adequate.
Last, Earthjustice contends the agency’s use of “human-assisted” genetic exchange is inconsistent with the definition of a recovered species under the Endangered Species Act.
Preso and Earthjustice attorney Jenny Harbine wouldn’t say where the lawsuit will be filed.
Parenteau was eager to take a guess, though.
Go to Malloy
“I know what they’re going to do,” he said. “They’re going to go to Malloy if they can get there. The law says the plaintiffs have their choice of forum.”
Donald Malloy, a federal district court judge in Montana, has a record of pro-wolf decisions. In August 2010, he ordered the reinstatement of Endangered Species Act protections in Idaho and Montana.
“I think they’ll go for an injunction,” Parenteau said. “That’s what they want to do to impress upon the court just how vulnerable these populations are and how dangerous this decision is. I can already hear what they’re going to say: ‘It took all these years to recover these populations to the point where they’re having a meaningful affect on the ecosystem, and you’re going to ruin the whole thing.’”
At least one Wyoming hunter thinks the conservation groups might succeed in halting the wolf hunt.
Glenn Taylor, a big-game outfitter in Kelly, told the News&Guide in August that he hesitates to offer wolf hunts to clients because of the possibility of litigation.
“There may be a judge that steps in any minute between now and Oct. 1,” Taylor said. “It’s wait-and-see at this point.”
The earliest an injunction could happen is Nov. 9. Rules require waiting 60 days after the filing of an intent-to-sue notice before legal action can proceed, Harbine said.
That means Wyoming hunters will have about six weeks to bag their wolf after Endangered Species Act protection ends Sept. 30.