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Preso: What the judge really said on wolves

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After a U.S. district court judge reinstated federal protections for the gray wolf in Wyoming, there has been an ongoing debate about what federal and state officials should do. But there shouldn’t be any debate about what the judge said.

U.S. District Judge Amy Berman Jackson ruled that the U.S. Fish and Wildlife Service’s decision to remove the gray wolf from the endangered species list and turn over management of the population in Wyoming to the state was arbitrary and unlawful.

The reason? The Fish and Wildlife Service required Wyoming to maintain a minimum population of 10 breeding pairs and 100 wolves under state management. But Wyoming allows unlimited wolf killing in various situations, including throughout a free-fire “predator zone” encompassing about 85 percent of the state.

For this reason, FWS insisted that Wyoming guarantee a population buffer — an adequate population above 10 breeding pairs and 100 wolves — to ensure that unregulated killing does not drop wolf numbers below the minimum.

Wyoming guaranteed no such buffer. It issued an addendum to its management plan that attempted to explain the state’s incentive to maintain the population above the absolute minimum, but it gave no number — and, more important, it contained no enforcement mechanism.

Judge Jackson found this unacceptable and illegal.

This outcome reflects an important reality that colors every wolf management issue in the state of Wyoming: Wyoming chose to implement a wolf management framework that differs from any other state by establishing a “predator zone” where unlimited numbers of wolves may be killed year round.

This widespread killing puts immense pressure on Wyoming’s other wolf management provisions to ensure that sufficient protections are in place to maintain a viable wolf population. Wyoming’s plan could not survive that level of scrutiny.

Still, some have claimed that the judge also admitted in her ruling that the wolf had recovered as a species even though she put it back under federal protection. That is not so.

When Jackson’s ruling discussed the wolf’s recovery, it addressed only a specific scientific finding about wolf immigration and the amount of “genetic exchange” among different populations the Fish and Wildlife Service had documented prior to the wolf’s delisting in 2012. Importantly, the judge did not address whether Wyoming’s management plan could sustain adequate wolf immigration in the future, which is also essential for any finding of recovery.

In fact, there was much about Wyoming’s plan the judge chose not to address once she found that the state’s wolf management laws and regulations failed to guarantee the minimum population required by the Fish and Wildlife Service to support delisting.

The judge didn’t address, for instance, the fact that Wyoming’s management program allows for permits to kill wolves based on vague allegations of livestock “harassment” — as well as many other challenged aspects of the state’s plan. Instead, the judge left those issues to be decided after the Fish and Wildlife Service reconsiders the Wyoming delisting.

That makes a comment by Fish and Wildlife Service Director Daniel Ashe all the more troubling.

Arguing that Judge Jackson shouldn’t have returned the wolf to federal protection, Ashe recently said, “The judge took a small defect to make a large decision of vacating the rule.”

The fundamental issue of Wyoming’s failure to guarantee an adequate minimum population of wolves is hardly a “small defect.” But, even more important, the court didn’t subject many other aspects of Wyoming’s program to any scrutiny after it found that major fault.

It would be wrong to mistake that silence for assent. If the Fish and Wildlife Service believes that Wyoming can fix its program merely by writing a slightly more binding promise to maintain a minimum population, it is effectively betting that it can win on every other outstanding issue concerning Wyoming’s wolf management — even though the Service has never yet won a wolf delisting case.

A smarter approach would be for the Fish and Wildlife Service and Wyoming to comprehensively address the weaknesses of Wyoming’s wolf management program that make it vulnerable to court reversal. Doing so would give the Wyoming Game and Fish Department the tools it needs to responsibly manage wolves. It would also ensure a secure future for a great American conservation success story.

Tim Preso is managing attorney of Earthjustice’s Northern Rockies office.

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