October 31, 2016

Mexican Wolf releases challenged

By M. Reed Hopper Senior Attorney

For more than 18 years, the U.S. Fish and Wildlife Service has released captive-bred Mexican gray wolves into the wilds of New Mexico.  These wolves are deemed “nonessential” populations because they are not critical to the survival of the species as a whole.  But they are critical to the survival of other species on which the wolves prey such as wild deer and elk populations as well as livestock and pets.

According to the Service, a single wolf may kill over 20 elk and deer per year.  In 2015, wolf depredation affected 102 domesticated animals, including cattle, horses, and pet dogs.  The  cattle mortality rate that year was the highest recorded since wolf releases began.  The Service also investigated 16 instances of wolf nuisance behavior, including wolves near houses or in proximity to people.  The current population totals nearly 100 wolves with 21 packs.  And more to come.

Due to the effect such releases have on the sovereign power of the States to manage wildlife within their borders and to protect local landowners from depredation, Congress requires the Service to cooperate with States in developing joint conservation plans.  To that end, the Service adopted a regulation that states the Service must comply with state permitting requirements before releasing experimental populations into the wild.

That worked until last year when New Mexico denied release permits to the Service until the Service could provide the State with a management plan that addressed the harms the new releases would cause state and private resources.  Predictably, the Service told the State of New Mexico to “take a hike” arguing it had the power, and even a duty, to release more nonessential Mexican gray wolves into the State without the State’s approval.  The Service released more wolves and plans to release many more this year, without complying with state permit requirements or even its own regulation.  New Mexico sought an injunction to stop this illegal action which was granted by the District Court of New Mexico.  The Service appealed the injunction to the Tenth Circuit Court of Appeals and briefing is underway.

The key legal issue is whether the Service is bound by both federal and state law to comply with state permit requirements when releasing “nonessential experimental populations” into the wild.  The issue is acute when the experimental population involves an apex predator like wolves that prey on wildlife and domestic livestock, and put people at risk, creating a public nuisance.

The District Court opinion can be read here.  The Service’s opening brief can be read here.  And the State’s response can be read here.  PLF will file an amicus brief later this week in support of the State on behalf of the New Mexico Cattle Growers Association whose members have had to shoulder the burden of ruinous wolf depredation for almost two decades without meaningful compensation or remedy.

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