November 23, 2010

The wolf saga continues

By The wolf saga continues

Author:  Damien M. Schiff

Last week, Judge Alan Johnson of the District of Wyoming ruled that the Service acted illegally when it refused to delist the Wyoming gray wolf subpopulation from the Endangered Species Act.  The court held that the Service's rationale—the state's wolf management program was inadequate to protect the wolf—was without scientific basis.

The decision comes only a few months after Judge Donald Molloy of the District of Montana ruled that the Service violated the ESA when it retained protections for the wolf in Wyoming but not for the wolf in Montana or Idaho.  The Service had determined that the Wyoming portion of the wolf's range was significant, and had listed the wolf on that basis.  Judge Molloy concluded that, once the Service determines that a species is endangered or threatened throughout a significant portion of the species's range (e.g., the wolf in Wyoming), the Service must then protect the species wherever it is found.

The two decisions can be reconciled, I think.  If on remand the Service determines that Wyoming's wolf management plan is adequate, and reaffirms its position that delisting of the wolf in Montana and Idaho is warranted, then the Service can delist the entire distinct population segment.  That outcome would be consistent with both decisions.

Caveat:  the environmentalist plaintiffs in the Molloy decision had challenged the Idaho/Montana delisting on other grounds as well, but the court declined to reach those grounds.  If the Service chooses to delist the entire DPS, then presumably the plaintiffs would reassert those grounds.

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