The wolves may have won the battle, but not the war: how the West was won under the Northern Rocky Mountain Wolf Recovery Plan.

I. INTRODUCTION

In February 1999, a female gray wolf known as B-45(1) followed the Snake River from Idaho and crossed into eastern Oregon.(2) B-45 holds the distinction of being the first wild wolf spotted in Oregon since 1963.(3) While the historical range of the gray wolf (Canis lupus) stretched throughout most of the coterminous United States and into Canada, its current range is much more limited, because the gray wolf has largely been e eliminated from the western United States.(4) Since 1978, the gray wolf has been listed as an endangered species throughout the lower forty-eight states, except for Minnesota, where it is listed as threatened.(5) Federal wildlife officials returned B-45 to Idaho the following month, because they feared she would be unable to find a mate in Oregon.(6) Her brief stay, however, heralds the arrival of complicated issues for the western states, few of which have wolf management programs. States will be unprepared to manage wolf populations when, given the current success of the reintroduction program, the wolves repopulate the Pacific Northwest and are delisted.(7)

B-45 is part of a recovery program authorized under the Endangered Species Act (ESA or Act),(8) which charges the federal government to "take such steps as may be appropriate" to conserve and protect endangered species to the point where the species can be removed from the endangered or threatened species lists,(9) Section 10(j) of the Act authorizes the United States Fish and Wildlife Service (FWS) in the Department of the Interior to create "experimental populations" of endangered or threatened species as a conservation tool.(10) These populations must be released into uninhabited portions of the species' historical range and are subject to less strict prohibitions than naturally occurring populations of endangered or threatened species.(11)

The Fish and Wildlife Service created the Northern Rocky Mountain Wolf Recovery Plan (NRMWRP) to reintroduce gray wolves into Yellowstone National Park and central Idaho, with the expectation that these wolves will eventually repopulate the West.(12) Eight years in the making, the plan was finally implemented in the winter of 1994-1995, when Canadian gray wolves were captured and released into two areas: Yellowstone National Park and central Idaho.(13) The program is believed to be highly successful, resulting in a population of about 170 adult wolves in each area, and mating between wolf packs indicates that the gray wolf is closer to becoming one integrated population.(14)

To establish an experimental population under section 10(j), the population must be "wholly separate geographically" from any already existing wolves within the experimental area.(15) Two recent court decisions examined this requirement in connection with the NRMWRP. Both the Ninth and Tenth Circuits upheld the FWS's regulations, which interpret the "wholly separate geographically" language to mean that the experimental population must be wholly separate geographically from any already existing populations of gray wolves, rather than wholly separate from individual gray wolves. The Tenth Circuit upheld the validity of the FWS wolf reintroduction regulations, reversing the district court's order to remove the experimental population of wolves from Yellowstone and central Idaho.(16) Meanwhile in United States v. McKittrick, the Ninth Circuit interpreted the same statutory language from the section 10(j) experimental population provision and regulations.(17) It determined that the "wholly separate geographically" language applied to populations of gray wolves, rather than individuals and rejected the argument that sightings of lone wolves constituted a population,(18)

McKittrick argued that the Canadian wolves transported to Yellowstone to create the experimental population were neither endangered nor threatened because wolves in Canada are not endangered. The Ninth Circuit concluded that the current location of a particular gray wolf determines whether or not it is considered part of an experimental population, not where the wolf originated.(19) Wolves found within the experimental population boundaries are considered experimental, while wolves found outside the boundaries are considered endangered.(20) The significance of experimental versus endangered status is that an experimental wolf is not subject to the strict prohibitions that an endangered wolf is subject to under the ESA.(21)

To fulfill the goals of both the ESA and the wolf recovery plan, gray wolves should have increased protection under the ESA. Currently, experimental populations can be designated as either essential or nonessential.(22) FWS has designated all experimental populations reintroduced thus far as nonessential.(23) Nonessential experimental populations within national parks or refuges only have threatened stares for some provisions of the ESA.(24) But even within the designated experimental areas, experimental wolves are subject to very limited protections.(25) The current FWS regulations, as upheld by the Ninth Circuit, may not recognize that experimental wolf populations can mix with naturally occurring populations or that naturally occurring wolves have already migrated from Canada into northwestern Montana and may migrate into central Idaho.(26)

This Chapter examines the status of the experimental gray wolf populations in Yellowstone National Park, central Idaho, and the rest of the western United States, as interpreted by FWS and upheld by the Ninth Circuit in United States v. McKittrick. Part II focuses on the history of the gray wolf in the United States, specifically the events and attitudes in the West. Part III addresses the legislative intent behind section 10(j), which established the experimental population provision, reads section 10(j) in the context of the entire ESA, and analyzes how the experimental population provision and its corresponding regulations operate. Part IV outlines the development of the Northern Rocky Mountain Wolf Recovery Plan from its conception and details fundamental components of the NRMWRP. Part V describes the facts behind United States v. McKittrick and the Ninth Circuit's opinion. Finally, Part VI evaluates the NRMWRP and its current status under the ESA in the context of McKittrick. This part critically considers the holding in McKittrick and the statutory scheme for experimental populations. It argues that current protections for experimental populations may be insufficient to fulfill the long-term goals of the ESA and concludes that the regulations, as interpreted by FWS, may be inconsistent with the underlying goals of the Endangered Species Act.

II. LOOKING BACK AT THE GRAY WOLF

Taxonomists identified over twenty subspecies of gray wolves that once ranged throughout the Northern Hemisphere.(27) These wolves spanned from around present-day Mexico City to northern Greenland,(28) and biologists estimate that North America at one time supported anywhere between 140,000 to 850,000 wolves.(29) However, extensive private and governmental predator control programs have reduced the gray wolf's present range within the lower forty-eight states by almost ninety-nine percent.(30) The largest current population outside of the coterminous United States exists in Alaska and Canada.(31)

The original wolves of Yellowstone National Park and Idaho are believed to have been of the subspecies Canis lupus irremotus.(32) As scientists believe the subspecies irremotus is extinct,(33) the Yellowstone and Idaho reintroduction programs are aimed at the entire species, Canis lupus, also called the Northern Rocky Mountain Wolf.(34) This reflects a modern opinion by scientists that many of the biological differences between the original twenty-plus subspecies are relatively immaterial.(35)

The gray wows history in the United States is a tumultuous one. Early European immigrants brought folklore and superstitions which were fashioned into a deep-seated prejudice against wolves.(36) Medieval tales of wolves feeding on children, solitary travelers, and corpses from wars and plagues were common throughout France, Spain, and Russia.(37) This background led to an immense fear of and aversion to anything wolf-like, and people suspected of being werewolves were often executed.(38)

A. Americans and Wolves

Rather than dissipating when wolves were largely extirpated from most parts of Europe by 1700,(39) these legends remained with Europeans, ingrained into their collective minds when they immigrated to the Americas.(40) In reality, the large majority of immigrants to the New World had never even seen a wolf.(41) To some of the early immigrants, such as the Puritans, the wolf symbolized a threat to one's spiritual and physical being.(42) However, one main reason for this dislike was economically based. Wild game and domestic livestock were crucial to survival in the New World, and by preying on those species, wolves threatened the colonists' chances of survival.(43)

Western frontiersmen faced similar difficulties and fears, although to a lesser extent.(44) Initially, there was scarcely any competition for prey between the wolves and the western settlers because of the abundance of wild ungulates, especially buffalo.(45) Nevertheless, during the first half of the nineteenth century, economic incentives for hunting wolves arose. Wolf pelts became popular and valuable.(46) In the 1830s, a wolf pelt was valued at one dollar, two decades later, the value had doubled.(47)

Hunters soon discovered a connection between buffalo and wolves. Once a buffalo had been skinned, wolves converged to feed on the carcasses.(48) Because hunters could easily acquire strychnine, it was an effortless and inexpensive task to apply the poison to the buffalo carcasses and return later to collect the wolf pelts.(49) This practice, called "wolfing," continued until the end of commercial buffalo hunting around the early 1880s and decimated the gray wolf population in the West.(50) While no records survive to determine the exact number of wolves killed when wolfing was rampant, it is clear that the practice drastically decreased the once abundant population of wolves.(51)

When the buffalo population decreased, livestock, especially cattle, replaced buffalo as the major ungulate in the West.(52) Although predation on livestock by wolves was just one of many problems cattlemen faced,(53) they held wolves increasingly responsible for financial difficulties.(54) Stockowners took these losses hard--they could not afford to lose stock to wolves because the cattle represented economic assets.(55) Ranchers often targeted the wolf as the chief source of trouble, because it was one problem that was within the ranchers' control.(56) Initially, wolf depredations were relatively minimal.(57) However, as the remnant wolf population, which initially lived and preyed on ungulates outside the buffalo range as an alternative food source(58) began to recover, it found a new source of prey in domestic livestock.(59) As a result, stockowners endorsed private and state predator control programs, including offering wolf bounties.(60) In 1869, Colorado was the first state in the West to enact legislation for wolf bounties.(61) Other states soon followed.(62)

B. Federal Wolf Control Programs

Throughout the early 1900s, in areas where they became politically prominent, stockowners used their influence to appeal to the federal government. Not only did stockowners endeavor to exterminate wolves from their own lands, but they also fervently targeted western public lands that were used for public grazing.(63) They contended that the federal government was ultimately creating sanctuaries for predators, such as wolves.(64) Consequently, the argument continued, these sanctuaries defied the purpose behind leasing the lands for grazing.(65)

The government agreed, and in 1906 the United States Forest Service, in conjunction with the Bureau of the Biological Survey in the Department of Agriculture,(66) joined private stockowners in keeping the western pasturelands safe from these "destructive animals."(67) The government's first act was to authorize rangers, stockowners, and hunters to kill wolves and other predators.(68) In 1915, Congress endorsed the concept of predator control programs when it appropriated $125,000 to the Biological Survey--one-third of its entire budget--"specifically for the destruction of `wolves, coyotes, and other animals injurious to agriculture and animal husbandry.'"(69)

The predator control programs in the coterminous United States lasted nearly thirty years, from 1915 to the early 1940s.(70) During this period, countless wolves were killed.(71) By 1945, only lone wolves existed within the lower forty-eight states.(72) The last known wolf in the Greater Yellowstone Ecosystem was killed in 1944.(73) The ultimate result of this period was to create a "codependency" between the agency, then known as the Predator Animal and Rodent Control (PARC),(74) and the livestock industry. PARC provided the trappers and equipment, and the `cooperators' paid one-quarter of the program's cost through an assessment on livestock.(75) The agency became increasingly reliant on the political and financial support of the livestock industry as a result of this codependency.(76) The National Park Service also had its own agenda. For example, in Yellowstone National Park, park officials believed that their foremost duty was to protect the park's game herds of deer, moose, buffalo, and elk--the "beautiful" animals of the national parks--from the menacing wolves and other predators.(77)

During the 1960s, wolf control programs ceased.(78) This was partly the result of game recovery, but also of changing public, scientific, and governmental perceptions.(79) The public no longer viewed wolves as monsters and cold-blooded killers, but instead as a symbol of the "freedom and independence" of the wilderness.(80) New scientific research probed the intricate ecological interactions between predators, prey, and their environment.(81) Special scientific advisory committees studied the federal predator control programs and determined that the programs had little scientific basis to justify the extent to which they had eliminated predators.(82) And in 1973, Congress passed the Endangered Species Act.

III. "EXPERIMENTAL" POPULATIONS: THE POLITICAL REMEDY

The passage of the Endangered Species Act and its subsequent amendments significantly affected wolf recovery efforts. The ESA mandated recovery and eventual delisting as a goal for all listed endangered and threatened species.(83) In response, the Department of the Interior established recovery teams to address each listed species' situation and chances for recovery(84) Another significant step towards gray wolf recovery in the West was the passage of the 1982 Amendment to the ESA.(85) The amendment created section 10(j)(86) as a program through which FWS could reintroduce "experimental" populations of endangered or threatened species for purposes of recovery.(87)

A. The Experimental Population Provision

Under section 10(j), the Secretary of the Interior must meet two requirements before a population can be deemed "experimental." First, the release of the proposed population must advance conservation of the targeted species.(88) Second, section 10(j) limits the area where the release may occur.(89) An experimental population may only be released into an uninhabited portion of the endangered or threatened species' historical range and the reintroduced population must be "wholly separate geographically from nonexperimental populations of the same species."(90) The provision essentially prohibits the reintroduction of an experimental population where there is an existing natural population. Congress created this "wholly separate geographically" requirement to "protect natural populations and to avoid potentially complicated problems of law enforcement," which might arise if the two types of populations mix together.(91)

The Secretary of the Interior may create two categories of experimental populations under section 10(j): essential and nonessential.(92) This designation is made on a case-by-case basis.(93) An essential experimental population is one whose loss the Secretary has determined "would be likely to appreciably reduce the likelihood of survival of that species in the wild."(94) Anything else is designated as nonessential.(95) This distinction between essential and nonessential experimental populations was designed to promote and facilitate reintroduction efforts and to further the ESA's overriding goal of conservation.

B. Legislative History of Section 10(j)

The impetus behind H.R. 8133 (the bill that eventually became the 1982 ESA Amendments) was to address problems in the original ESA.(96) One such problem was the Act's "tendency to discourage voluntary introduction of species in areas of their historical range."(97) Although prior to the 1982 Amendment the Department of the Interior had similar authority to place endangered or threatened species into areas of its historic range for purposes of recovery, wildlife officials more often than not encountered considerable local objections to reintroduction proposals.(98)

Local landowners protested any possible reintroductions because of concerns regarding the strict prohibitions under the Act. Before Congress enacted section 10(j), the ESA's strict prohibitions applied fully to wolves translocated by the Secretary of the Interior for recovery.(99) Prior to 1982, any wolves found within the United States' borders would be considered endangered species regardless of whether they were part of a naturally occurring population in the United States or translocated into the United States for reintroduction purposes.(100) The taking of any of these wolves was strictly prohibited under section 9 of the ESA.(101) In other words, before section 10(j), under the section 9 prohibitions no legal distinction existed between naturally occurring and reintroduced species. All wolves within the United States were considered endangered and strictly protected. Furthermore, private landowners and local governments objected to the release of fully protected species because they "feared that [if] these species became established [within the boundaries of their properties], FWS would put restrictions on land uses."(102)

These forceful objections hampered recovery attempts because agencies feared strong political opposition to such recovery efforts.(103) H.R. 6133 sought to deal with these difficulties by creating a more flexible framework through which FWS officials could introduce experimental populations for recovery.(104) To lessen the impacts of the reintroduced population on landowners and local governments, the new framework allowed FWS officials to selectively apply the provisions of sections 7(105) and 9(106) to experimental populations.(107) The implications of the section 10(j) provision and the discretionary application of sections 7 and 9 are discussed below.

C. Selective Application of Sections 7 and 9 for Experimental Populations

1. Section 9 Prohibitions for Experimental Populations

Section 9 of the ESA(108) prohibits the "taking" of any endangered fish or wildlife on the endangered species list.(109) "Taking" is broadly defined to encompass a number of actions: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(110) Anyone who takes an endangered species faces the possibility of civil liability or even criminal prosecution.(111)

The language of section 9 only focuses on endangered species. Threatened species are governed by section 4(d), where takings prohibitions may be more relaxed.(112) Section 4(d) provides FWS with discretionary authority to "issue such regulations as [it] deems necessary and advisable to provide for the conservation of [threatened] species."(113) FWS has used its discretion under section 4(d) to issue regulations that categorically extend the section 9 takings prohibitions to all threatened species under its jurisdiction.(114)

Experimental populations are treated similarly. Under section 10(j), experimental populations are treated as if they were listed as threatened.(115) Although this may be the case, the FWS categorical application of the section 9 prohibitions do not apply to populations created under section 10(j) authority. Instead, FWS is required to promulgate regulations regarding each experimental population on a case-by-case basis.(116) In essence, the experimental population provision operates as an exception to the mandatory strict prohibitions that apply to endangered species under section 9.(117) The agency has used this discretionary authority to permit certain activities for experimental populations; including incidental takings and some directed takings of individual members of an experimental population,(118) thus fulfilling Congressional intent for flexibility within the experimental population regulations.(119)

The experimental population regulations generally permit the public to engage in certain activities when individual members of the experimental population could interfere with human activities.(120) For instance, regulations concerning the experimental southern sea otter population created an "otter-free" zone to appease oil and shellfishing industries.(121) Also, livestock owners "may take ... a [gray] wolf [that is caught] in the act of killing, wounding, or biting livestock."(122)

2. Section 7 Consultation Requirements for Experimental Populations

Under section 7 of the ESA, federal officials are prohibited from conducting any activity that would be "likely to jeopardize the continued existence of any endangered species or threatened species or adversely modify their critical habitats."(123) This subsection requires agencies to consult with FWS, or in some situations the National Marine Fisheries Service within the Department of Commerce, to determine if the proposed activity may jeopardize a listed species.(124) The Secretary of the Interior must write a biological opinion considering the effects of the proposed action.(125) If the action could jeopardize the species, then the proposed federal project cannot occur unless the consulting agency adopts an alternative that would avoid jeopardy to the species.(126)

However, section 7 consultation requirements may not apply to experimental populations. The experimental population regulations distinguish between essential and nonessential experimental populations for the purposes of section 7. There is no section 7 formal consultation requirement for nonessential experimental populations located outside the National Park System or National Wildlife Refuge System.(127) These nonessential populations do not receive full section 7 protections; instead, they are treated as "species proposed to be listed."(128) For essential experimental populations or nonessential populations within federal park or wildlife refuge boundaries, formal consultation may still be required.(129) By choosing to designate an experimental population as either essential or nonessential, FWS is exercising its discretion to apply the requirements of section 7 to the experimental population.

Similarly, there are more relaxed obligations under section 7 regarding the designation of critical habitat.(130) FWS may designate critical habitat for essential experimental populations through notice and comment rulemaking, but the regulations provide that "[n]o designation of critical habitat will be made for nonessential populations."(131) Furthermore,

   [i]n those situations where a portion or all of an essential experimental
   population overlaps with a natural population of the species during certain
   periods of the year, no critical habitat shall be designated for the area
   of overlap unless implemented as a revision to critical habitat of the
   natural population for reasons unrelated to the overlap itself.(132)

Although the experimental population regulations do allow for the designation of critical habitat in some situations, FWS has yet to do so for any experimental population.(133)

IV. THE NORTHERN ROCKY MOUNTAIN WOLF RECOVERY

In 1974, as required by the ESA,(134) FWS established a recovery team to consider the feasibility of reintroduction to promote gray wolf recovery.(135) Although a plan was developed and signed in 1980,(136) no action was taken on it, and the initial plan languished until FWS signed a revised plan in 1987.(137) The 1987 plan determined that areas closer to Canada were more likely to form wolf populations naturally. This was already true in northern Montana, where a small population had formed.(138) The plan also looked farther south of the Canadian border to Yellowstone National Park. Because Yellowstone was farther removed geographically from Canada than areas such as northern Montana, the plan concluded that the only means by which gray wolves would repopulate Yellowstone and the Northern Rocky Mountain area was if they were put there.(139) It recommended using the section 10(j) provision to establish an experimental population of gray wolves.(140)

However, old habits die hard. An environmental impact statement (EIS) was necessary before any action could come of the 1987 recommendations, and western politicians who were still linked to the livestock industry blocked efforts to authorize the EIS.(141) Consequently, attempts to reintroduce gray wolves were obstructed.

In 1990, the Wolf Management Committee was created to again examine the viability of wolf reintroductions; it made its own recommendations to Congress one year later.(142) The Committee identified three areas--in Idaho, Montana, and Wyoming--to be targeted for nonessential experimental wolf recovery.(143) It also proposed that management of the experimental populations outside of the federal park and refuge systems should be left to the states.(144) Although no action was taken on the Committee's recommendations, within a year Congress appropriated funds for the EIS,(145) and many of its recommendations were incorporated into the EIS.(146) FWS released the final EIS in the summer of 1994.(147)

The final plan took effect in the winter of 1994-1995 with the release of captured Canadian gray wolves into sites in Yellowstone and central Idaho.(148) The reintroduction efforts did not include Montana, because wolves from across the Canadian border had already settled and formed a population in the state.(149) The regulations define a wolf population to be one that consists of "at least two breeding pairs of gray wolves that each successfully raise at least two young to December 31 of their birth year for two consecutive years."(150) The NRMWRP defined "recovery" as a population of least ten breeding pairs of wolves in each of the targeted recovery areas for three successive years.(151) If this standard is met, then FWS would propose delisting the gray wolf, and the population would revert to the sole management authority of the states or tribes.(152)

Under the recovery plan and its accompanying regulations, there are certain circumstances when the take of an experimental wolf is authorized.(153) These circumstances include: taking or killing a wolf caught in the act of killing, wounding, or biting livestock on private lands;(154) taking or killing a wolf that poses a threat to human safety;(155) taking or killing a wolf in defense of others;(156) and relocating wolves that have wandered outside of the experimental population boundaries(157) or are "negatively impacting localized ungulate populations at an unacceptable level."(158)

The regulations also provide that the varied protections under sections 7 and 9 afforded to either the experimental populations or any naturally occurring wolves would be determined by the location of the specific wolf in question.(159) A wolf found outside of the experimental area will be presumed endangered unless marked or known to be experimental.(160) For example, if an unmarked or unknown experimental wolf were to leave the designated experimental range, then that wolf would be protected under the ESA as an endangered species, even though it originated from the experimental population.(161) Likewise, wolves that migrate into Idaho or Wyoming, but outside the range of the experimental population boundaries, would also be considered endangered species.(162) Any wolves that migrate into the experimental region would be classified as nonessential experimental wolves for the purposes of sections 7 and 9.(163)

V. UNITED STATES V. McKITTRICK

Following the release of the experimental wolves into Yellowstone, two wolves, a male and a female, traveled together from Yellowstone to the Red Lodge, Montana area.(164) The male wolfs skinned body was found in the area, and Chad McKittrick was charged and convicted of taking and possessing this wolf in violation of the ESA and FWS's experimental populations regulations.(165) On appeal to the Ninth Circuit, McKittrick argued, among other issues, that the reintroduced wolves had been improperly designated as an experimental population because those wolves were not "wholly separate[d] geographically" from naturally occurring wolves in Yellowstone.(166) Section 10(j) prohibits the reintroduction of an experimental population if that population will not be "wholly separate geographically" from a naturally occurring one.(167) McKittrick pointed to sightings of individual non-introduced wolves in the experimental area as confirmation of the naturally occurring population.(168) Accordingly, he argued that when an experimental population overlaps with a naturally occurring one, the former loses its experimental status.(169)

The Ninth Circuit disagreed. It examined the "wholly separate geographically" language and concluded that the "wholly separate geographically" requirement had not been violated when the experimental population was reintroduced within the range of naturally occurring individual wolves; the requirement only applied to populations of wolves.(170) It deferred to FWS's interpretation of "population," and stated that the dispersing or lone wolves to which McKittrick referred did not constitute a population under FWS regulations.(171) In doing so, the court distinguished its interpretation of FWS wolf regulations from that of the District Court of Wyoming's, which had reached the opposite conclusion and constructed the "wholly separate geographically" requirement to apply to individual wolves.(172)

The Ninth Circuit also concluded that the level of protection given to a wolf is determined by the place where the wolf is found, not where it originated.(173) It pointed out that had McKittrick's argument been valid, and had the experimental wolf he shot lost its experimental status because the experimental population overlapped with the naturally occurring population, the wolf would have been classified as endangered and not experimental.(174) In that situation, McKittrick would not have been in a better position; he merely would have been charged under a different ESA violation, taking an endangered wolf in violation of section 9, rather than taking an experimental one in violation of the gray wolf experimental population regulations.(175)

VI. THE FUTURE OF EXPERIMENTAL POPULATIONS

The Ninth Circuit correctly deferred to the agency's interpretation of the "wholly separate geographically" requirement and the definition of a "wolf population" when it upheld McKittrick's conviction.(176) However, the definitions of "essential" and "noneassential" may make the experimental population regulations fundamentally inconsistent with the purposes of the ESA.(177) Consequently, the experimental wolf population regulations could impede wolf recovery.

The overriding goal of the ESA is to provide for the recovery of listed species until protection under the Act is no longer necessary.(178) Specifically, the ESA mandates the Secretary of the Interior to "create program[s] for the conservation of ... endangered species and threatened species."(179) "Conservation" is further defined as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary."(180) Since section 10(j) authorizes the release of experimental populations into uninhabited portions of the species' historical range, the provision provides an instrument to achieve conservation and species recovery and to ultimately fulfill the Congressional intent that targeted species are to be restored in their natural habitat or within their historical range.(181)

A. Flexible Management under 10(j)

Section 10(j) of the ESA promotes wildlife management and recovery efforts by allowing FWS to apply sections 7 and 9 on a case-by-case basis. Congress created section 10(j) to allow FWS both to carry out its duty to conserve species under the ESA and to diminish opposition to these recovery efforts.(182) The flexibility of the experimental population program has thus far proven to be beneficial in the short-term, because it has succeeded in obtaining necessary cooperation from local governments and landowners.(183)

This has been especially true for the black-footed ferret experimental populations. Private landowners largely owned the release area for the black-footed ferret populations in the Shirley Basin of Wyoming.(184) In addition, the land was widely used for agriculture and recreation.(185) Using its discretionary authority under section 10(j), FWS was able to establish a number of regulations that adequately protected the released ferrets on the one hand, such as the establishment of prairie dog ranches (ferret food), and alleviated the concerns of landowners on the other Coy providing for cooperative agreements with ranchers when part of the leased public land would be used for ferret purposes).(186) The captive breeding program in the Shirley Basin has proved to be successful since its inception in 1991.(187) The program's success depended in large part upon the cooperation of the landowners, and the landowners would not have cooperated if section 10(j) had not been so flexible.(188)

To an extent, the same can also be said for the gray wolf reintroductions. FWS used the experimental regulations to dissuade "local concerns about [issues such as] excessive government regulation of private lands, uncontrolled livestock depredations, [and] excessive big game predation...."(189) At this point, the gray wolf experimental reintroductions have been proclaimed a success because each population has increased from the original transplants from Canada to about 170 individuals in both the Yellowstone and central Idaho areas.(190)

B. Long-term Effects on Grail Wolf Recovery

In spite of the obvious success of the various experimental population programs, the long-term benefits are uncertain. In fact, it is possible that the experimental gray wolf regulations may cause more harm than benefit to long-term gray wolf recovery efforts. The harm may arise from the regulations' physical and legal separation of experimental wolves from naturally occurring wolf populations. The separation stems from the flexible nature of the program, which allows FWS to apply portions of sections 7 and 9 at its discretion.(191) This may be significant because it makes it more difficult for members of the experimental and naturally occurring populations to eventually become an integrated population of wolves.

The gray wolf experimental population regulations designate boundaries where the population is to be protected.(192) This serves to separate the experimental wolves from any naturally occurring individuals in two ways. First, the regulations separate the wolves geographically.(193) The regulations emphasize this confinement by authorizing several control measures, including the removal of dispersing individuals when they move out of the experimental population boundaries.(194)

Second, the varied levels of protection under sections 7 and 9 legally isolate one group of wolves from the other.(195) Hence, experimental populations designated as "nonessential" are provided limited protections under sections 7 and 9,(196) while wolves found outside the boundaries of the experimental area are presumed to be endangered.(197) The result of this legal isolation is that, in many situations, the experimental wolves are almost discouraged from traveling outside of the experimental boundaries.

In effect, the regulations have penned the wolves into an area convenient for American civilization. It is not unlike having a large, invisible barrier around the reintroduced wolves. Although FWS's regulations provide flexibility in managing reintroduced species,(198) they provide no flexibility in promoting an integrated population of wolves.(199) The regulations do not fully support the possibility that both experimental and nonexperimental wolves may migrate in and out of the experimental boundaries or that the two populations may merge together.(200) Even though B-45 traveled from Idaho to Oregon, she was captured and relocated within the experimental population boundaries in Idaho.(201) By separating the experimental populations from nonexperimental populations, both in terms of geography and levels of protection, section 10(j) and its regulations seem to hamper the possibility that the two populations will join together and become a single population.(202) Eventually having a single integrated population is important to wolf recovery, because it will "enhance wolf viability by increasing genetic diversity through genetic interchange between segments of the population."(203)

Arguably, the legislative history of the ESA indicates that Congress and the Department of the Interior intended section 10(j) and its regulations to be flexible and promote shared management of experimental populations between federal, state, and tribal governments.(204) But how beneficial is this flexibility in achieving wolf recovery? The experimental population designation is an exception to the Act's normally stringent section 9 prohibitions.(205) By creating experimental populations with the status of "threatened species," regardless of theft status for naturally occurring populations outside of the experimental range, the federal government is setting these wolves off from the naturally occurring population.(206) The gray wolf experimental population regulations discourage individuals of a reintroduced species from leaving the experimental boundaries and isolate the experimental population from naturally occurring populations.(207) Isolation may be harmful in the long term, because it may reduce the chance that the two populations will merge together.

FWS's distinctions between "essential" and "nonessential" further isolate experimental wolves from naturally occurring ones. Because the FWS interpretation of essential is rather narrow, it makes the designation of any essential experimental population extremely unlikely.(208) The entire framework of the experimental population provision is based on the fact that the population will be released into the wild.(209) These individuals consist of either captive-bred animals that are relocated into the experimental population area, such as the black-footed ferret,(210) or as with the gray wolf, animals that are relocated from existing populations,(211) Accordingly, the only way an experimental population's loss could fit the definition of essential, to "appreciably reduce the likelihood of survival of that species in the wild," is if the individuals are taken from the existing endangered or threatened population and used to create the experimental population.(212) The effects of these limited protections for nonessential populations are noticeable in the gray wolf experimental population regulations, where relaxed section 9 prohibitions authorize the Secretary of the Interior to treat reintroduced wolves as "threatened" species and, at his discretion, to promulgate regulations prohibiting takings.(213) Currently, the wolf regulations allow, among other acts, the taking, harassing, killing, removal, and relocation of gray wolves in certain situations.(214) The nonessential experimental populations regulations may be too flexible, because they allow FWS to create special rules, which, as argued above, may hamper long-term gray wolf recovery efforts and ultimately the success of the reintroduction.

A final consideration is that the section 10(j) provisions and regulations do not contemplate anything beyond reintroducing species. Although delisting is the primary goal for the gray wolf experimental populations, neither Congress nor FWS have specifically addressed how and when wolf management should shift from the federal government to the states. As the gray wolf populations increase,(215) the possibility of transferring management authority to the states becomes more likely. It is crucial to the success of gray wolf recovery in the West that the states be prepared when the time for delisting arrives.

VII. CONCLUSION

The fundamental purpose behind the Endangered Species Act is to conserve species to the point where they are deemed recovered and no longer need the Act's protections.(216) At first glance, the experimental population provision, section 10(j), seems to do just that.(217) But by delving deeper into the statutory language and accompanying regulations, it becomes apparent that there is an innate flaw in the framework of the provision. The Fish and Wildlife Service's distinctions between essential and nonessential populations limit the scope to which the gray wolf experimental populations are afforded certain protections under the Act, namely the section 7 consultation requirement and the section 9 prohibitions.(218) Consequently, these limitations operate to separate experimental populations from nonexperimental populations on the basis of geography, thus limiting the wolves' natural tendency to be free ranging and to mingle with others of its kind. Similarly, the limitations put a legal barrier between the populations, affording different levels of protection under the Act.

If experimental reintroductions are to succeed and the gray wolf population is to recover, then wolves, and other species released under section 10(j), should have protections similar to individuals in naturally occurring populations, such as stricter takings prohibitions. Although the experimental provision was intended to provide flexibility and local support for reintroduction programs, in actuality the program is insufficient to provide for recovery in the long run because of the barriers put between experimental and nonexperimental populations. The reintroduction of gray wolves to the northern Rocky Mountains heralds a turning point in the war against extinction, but there are still battles to be fought before victory can be declared.

(1) B-45 was renamed "Freedom" by school children in a contest organized by the Hells Canyon Preservation Council Name That Wolf: We Have a Winner!, at http://channel6000.com/news/stories/news-990908-161618.html (last visited Mar. 12, 2000) (KOIN TV report, Sept 8, 1999).

(2) Florangela Davila, Gray Wolves' Return Hailed as Success, but Court Fight Continues, SEATTLE TIMES, June 4, 1999, at A1.

(3) Courtenay Thompson, Wolf Tests Oregon's Welcome, OREGONIAN, June 3, 1999, at Al.

(4) Timothy B. Strauch, Holding the Wolf by the Ears: The Conservation of the Northern Rocky Mountain Wolf in Yellowstone Park, 27 LAND & WATER L REV. 33, 44-45 (1992).

(5) 59 Fed. Reg. 60, 252 (Nov. 22, 1994).

(6) Thompson, supra note 3, at Al. The wolf reintroduction regulations allow the relocation of wolves that have dispersed outside of the experimental area. 50 C.F.R. [sections] 17.84(i),(i)(3)(xi) (1999).

(7) Kim Murphy, The Wolves that Went South, TORONTO STAR, July 31, 1999, available at 1999 WL 22051086.

(8) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(9) Id. [sections] 1531(b). The definition of "conserve" requires the federal government to employ any such methods and procedures necessary until the ESA's protections are no longer necessary. Id. [sections] 1532(3).

(10) Id. [sections] 1539(j). An "experimental population" is any population of endangered or threatened species, separate from any naturally occurring population, authorized by the Secretary of the Interior for release for conservation purposes. Id. [sections] 1539(j)(1), (j)(2)(A).

(11) Id. [sections] 1539(j)(1).

(12) Thompson, supra note 3, at Al. The wolf reintroduction regulations can be found at 50 C.F.R. [sections] 17.840) (1999).

(13) Mimi S. Wolok, Experimenting With Experimental Populations, 26 ENVTL L. REP. 10,018, 10,028 (1996).

(14) U.S. FISH AND WILDLIFE SERVICE , WOLF TRACKS III: A SUMMARY OF GRAY WOLF ACTIVITIES AND ISSUES 4 [hereinafter WOLF TRACKS III], at http://midwest.fws.gov/wolf/learn/trck3pdf.htm (Dec. 1999); U.S. Fish and Wildlife Service, Wolves in North America: Questions and Answers about Gray Wolves in North America [hereinafter Gray Wolves in North America], at http://midwest.fws.gov/wolf.learn/qandas.htm (last visited Mar. 31, 2000); William K. Stevens, Wolf Packs Making Firm Foothold in Northern Rockies, DENVER POST, June 4, 1999, at A32.

(15) 16 U.S.C. [sections] 1539(j)(1)(1994).

(16) Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1241 (10th Cir. 2000).

(17) 142 F.3d 1170 (9th Cir. 1998).

(18) Id. at 1175.

(19) Id.

(20) 50 C.F.R. [sections] 17.84(i)(7)(iii)(1999).

(21) See infra Part III.

(22) See 16 U.S.C. [sections] 1539(J)(1994).

(23) Wolok, supra note 13, at 10,020.

(24) See 16 U.S.C. [sections] 1539(J)(1994).

(25) 50 C.F.R. [sections] 17.84(i)(7)(1999).

(26) Murphy, supra note 7.

(27) BRUCE HAMPTON, THE GREAT AMERICAN WOLF 21 (1997).

(28) BARRY HOLSTUN LOPEZ, OF WOLVES AND MEN 12-13 (1978).

(29) HAMPTON, supra note 27, at 23.

(30) John Weaver, The Wolves of Yellowstone, History, Ecology, and Status, NATURAL RESOURCES REPORT NUMBER 14 (1978), reprinted in PAUL SCHULLERY, THE YELLOWSTONE WOLF. A GUIDE AND SOURCEBOOK 4 (Paul Schullery, ed. 1996).

(31) LOPEZ, supra note 28, at 13.

(32) See Strauch supra note 4, at 36.

(33) Id. at 37.

(34) Id.

(35) WEAVER, supra note 30, at 29.

(36) Valerie M. Fogleman, American Attitudes Towards Wolves: A History of Misperception, 13 ENVTL. REV. 63, 64 (1989); HAMPTON supra note 27, at 64.

(37) HAMPTON, supra note 27, at 64.

(38) Id. "Between 1598 and 1600, one French magistrate decreed death to six hundred citizens for being werewolves." Id.

(39) Id; Fogleman, supra note 36, at 76-77.

(40) See HAMPTON, supra note 27, at 64-65.

(41) Id.; Fogleman, supra note 36, at 76-77.

(42) HAMPTON, supra note 27, at 65. See Fogleman, supra note 36, at 65-66 (examining the American distrust and hatred of wolves).

(43) HAMPTON, supra note 27, at 65; Fogleman, supra note 36, at 64; LOPEZ supra note 28, at 169-70.

(44) See HAMPTON, supra note 27, at 80-81.

(45) Id. at 81.

(46) Id. at 107-08.

(47) LOPEZ, supra note 28, at 177.

(48) See HAMPTON, supra note 27, at 107.

(49) HAMPTON, supra note 27, at 108-09;, LOPEZ supra note 28, at 178-79.

(50) HAMPTON, supra note 27, at 112-13; Rick McIntyre, Introduction to Chapter 2, in RICK MCINTYRE, WAR AGAINST THE WOLF 53 (Rick McIntyre, ed., Voyageur Press 1995).

(51) HAMPTON, supra note 27, at 113. Most of today's knowledge about the possible number and identifications of wolf subspecies comes from early taxonomists, such as Edward Goldman, who identified twenty-four subspecies of wolves in 1945. LOPEZ, supra note 28, at 13. Because the period of wolfing occurred years before such detailed scientific records and observations, the actual number of wolves eliminated by wolfing is unknown. Id. at 180.

(52) HAMPTON, supra note 27, at 114.

(53)Other difficulties included weather, disease, and an unpredictable beef market LOPEZ, supra note 28, at 180.

(54) Id.

(55) HAMPTON, supra note 27, at 114.

(56) LOPEZ, supra note 28, at 180.

(57) HAMPTON, supra note 27, at 114.

(58) See id. at 113.

(59) See id. at 114-16.

(60) Id. at 118. See also 1890: Wolf Fund Letter, Wyoming, in MCINTYRE, supra note 50, at 121 (reprint of a 1890 letter from a private ranching organization assessing fees for the organization's wolf bounty program).

(61) LOPEZ, supra note 28, at 181. Montana Wolves and Panthers, FOREST & STREAM, July 22, 1886, reprinted in part in MCINTYRE, supra note 50, at 84.

(62) Wyoming passed its first wolf bounty legislation in 1875, 1875-1913: Wolf Bounty Laws in Wyoming Territory and State, in MCINTYRE supra note 50, at 118. The legislators in the Dakotas and Montana created wolf bounties in 1881 and 1883, respectively. HAMPTON, supra note 27, at 118-19.

(63) HAMPTON, supra note 27, at 131.

(64) Id.

(65) Id.

(66) Id. Franklin Roosevelt's administration later moved the Biological Survey from the Department of Agriculture to the Department of the Interior, where it eventually became the Fish and Wildlife Service. Id. at 154; see also infra note 74 (describing various reorganizations to the agency's predator control subdivision from its inception into its current form).

(67) For example, wolves were portrayed as cruel animals that kill "wantonly and maliciously." HAMPTON, supra note 27, at 132-33.

(68) See id at 134-35.

(69) Id. at 134.

(70) LOPEZ, supra note 28, at 187. Predator control in Yellowstone National Park, however, ended earlier in 1926. HAMPTON, supra note 27, at 142. In Alaska and Canada, wolf control programs continued into the 1960s. Id. at 167.

(71) The actual number of wolves killed nationwide by government predator control programs is uncertain. Although Lopez reports that government hunters exterminated over twenty thousand wolves in the west, other reports reveal far different statistics, which may have been augmented by counting gray and red wolves, coyotes, and wolf-coyote hybrids. LOPEZ, .supra note 28, at 187; HAMPTON, supra note 27, at 171. In 1931, "PARC reported having killed about 3,500 gray wolves, although the actual number was probably a good deal greater due to poisoned animals that were never recovered." HAMPTON, supra note 27, at 146. By 1964, the agency "claimed to have killed a total of 70,000 wolves." Id. at 170. The Biological Survey and "its cooperators had tallied a grand total of 24,132 [gray and red wolves] ... taken between July 1, 1915, and June 30, 1941." Stanley P. Young, The Wolf in North American History, reprinted in MCINTYRE, supra note 50, at 199.

(72) HAMPTON, supra note 27, at 146.

(73) D. Baldes et al., The Last Wolf, 1943, interview with L. Cottenoir, 1(4) YELLOWSTONE. SCI. 10 (1993), reprinted in part in SCHULLERY, supra note 30, at 92.

(74) Over its history, the subdivision in charge of animal predator control was restructured and given many names. When first organized, it was named the Predator Animal and Rodent Control (PARC). Later, the agency became the Branch of Predator and Rodent Control and was finally renamed the Animal Damage Control, as it is known today. HAMPTON, supra note 27, at 135, 154, 174.

(75) Id. at 127.

(76) Id.

(77) Id. at 142.

(78) Id. at 167.

(79) Id.

(80) Id.

(81) For example, noted wolf biologist, L. David Mech published The Wolves of Isle Royale in 1966, which examined the interactions between the wolves and moose in Lake Superior's Isle Royale National Park. Id. at 169.

(82) Id. at 172-74. In 1964, the Special Advisory Board on Wildlife Management evaluated predator management policies of the Branch of Predator and Rodent Control, formerly known as PARC. "The board consisted of several scientists including ... its chairman, zoologist A. Starker Leopold," son of Aldo Leopold, and the former head of the Biological Survey, Ira Gabrielson. Id. at 172. The Leopold report, as it was known, had little effect on the agency's practices. Seven years later, a second scientific advisory reviewed the government's predator control programs. This second advisory committee created the Cain report, named after the committee's chairman, Stanley Cain and also criticized the predator control programs, charging that PARC and the livestock industry "had fostered a mutually beneficial relationship ... that had `flourished over the decades without the objective information to warrant it, even in the face of public criticism.'" Id. at 173-74. The report concluded that predator control programs had "substantial public cost and very little if any public interest" Id.

(83) 16 U.S.C. [sections] 1531(b) (1994). An "endangered" species is one which is "in danger of extinction throughout all or a significant portion of its range.... " Id. [sections] 1532(6). A "threatened" species, on the other hand, is one "which is likely to become an endangered species within the foreseeable future...." Id. [sections] 1532(20).

(84) HAMPTON, supra note 27, at 178.

(85) Pub. L. No. 97-304, 96 Stat 1411, (1982).

(86) 16 U.S.C. [sections] 1539 (1994).

(87) H.R. CONF. REP. NO. 97-835, at 33-34 (1982) reprinted in 1982 U.S.C.C.A.N. 2860, 2874-75; 129 CONG. REC. 24,148-24,158 (1982).

(88) 16 U.S.C. [sections] 15390)(2) (1994).

(89) Id. [sections] 1539(j)(1).

(90) Id.

(91) H.R. REP. NO. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833.

(92) 16 U.S.C. [sections] 1539(j)(2)(B) (1994).

(93) Id.

(94) 50 C.F.R. [sections] 17.80(b) (1999).

(95) Id.

(96) H.R. REP. No. 97-567, at 8 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2808.

(97) Id.

(98) Endangered and Threatened Wildlife and Plants: Experimental Populations, 49 Fed. Reg. 33,885, 33,886 (Aug. 27, 1994) [hereinafter Experimental Populations Regulations].

(99) Id.

(100) In Minnesota, however, gray wolves are listed as threatened rather than endangered. 59 Fed. Reg. 60,252 (Nov. 22, 1994). Therefore any wolves found within that state's borders would be considered a threatened species.

(101) 16 U.S.C. [sections] 1538 (1994). For example, the Act makes it a crime for any person to "import any [listed fish or wildlife] species into, or export any such species from the United States;" "take any such species within the United States;" "possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation [of this Act];" "sell or offer for sale in interstate or foreign commerce any such species;" or "violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed." Id. [sections] 1538(a)(l)(A), (B), (D), (E), (F), (G).

(102) Wolok, supra note 13, at 10,018-10,019.

(103) H.R. REP. NO. 97-567, at 17 (1962), reprinted in 1982 U.S.C.C.A.N. 2807, 2817; Strauch, supra note 4, at 56.

(104) H.R. CONF. REP. NO. 97-835, at 33-34 (1982) reprinted in 1982 U.S.C.C.A.N. 2860, 2874-75; 129 CONG. REC. 24,148-24,158 (1982).

(105) 16 U.S.C. [sections] 1536 (1994).

(106) Id. [sections] 1538.

(107) Experimental Populations Regulations, supra note 98.

(108) 16 U.S.C. [sections] 1538 (1994).

(109) Id. [sections] 1538(a).

(110) Id. [sections] 1532(19).

(111) Any person who "knowingly" takes an endangered species in violation of the Act may be subject to criminal liability. Id. [sections] 1539(a)(1), (a)(2), (c), (d), (f), (g). See Reid Page et al., Environmental Crimes, 36 AM. CRIM. L. REV. 515, 590-92 (1999) (describing and briefly analyzing wildlife crimes under the Endangered Species Act).

(112) 16 U.S.C. [sections] 1533(d) (1994). "[T]he Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such [threatened] species" including the prohibitions under section 9. Id. (emphasis added).

(113) Id.

(114) Id. [sections] 1533(d); 50 C.F.R. [sections] 17.40-.48 (1999). In contrast, the National Marine Fisheries Service has not issued regulations to categorically apply section 9 to threatened species under its jurisdiction. Instead, it has chosen to promulgate regulations for threatened species on a case-by-case basis. 50 C.F.R. [sections] 222.307(a) (1999).

(115) 50 C.F.R. [sections] 17.82 (1999).

(116) Id. The agency regulations on experimental populations provide that "[a]ny population determined by the Secretary to be an experimental population shall be treated as if it were listed as a threatened species for purposes of establishing protective regulations under section 4(d) of the Act with respect to such population. The Special rules (protective regulations) adopted for an experimental population under [sections] 17.81 will contain applicable prohibitions, as appropriate, and exceptions for that population." Id.

(117) Inga Haagenson Causey, The Reintroduction of the Wolf in Yellowstone: Has the Program Fatally Wounded the Very Species it Sought to Protect? 11 TUL. ENVTL. L.J. 461, 465-67 (1998).

(118) See 50 C.F.R. [sections] 17.84(d) (1999) (FWS regulations regarding special rules for vertebrate experimental populations).

(119) See H.R. REP. NO. 97-567, 34 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2834 (remarks on congressional intent regarding the flexibility of section 10(j)).

(120) Wolok, supra note 13, at 10,019-10,020.

(121) 50 C.F.R. [sections] 17.84(d) (1999); Wolok, supra note 13, at 10,025.

(122) 50 C.F.R. [sections] 17.840)(3)00 (1999).

(123) 16 U.S.C. [sections] 1536(a)(2) (1994).

(124) Id.

(125) Id. [sections] 1536(b).

(126) Id. [sections] 1536(b)(3)(A).

(127) Experimental Populations Regulations, supra note 98.

(128) Strauch, supra note 4, at 51, 57; U.S. FISH AND WILDLIFE SERVICE, NOTICE OF RECORD OF DECISION AND STATEMENT OF FINDINGS ON THE ENVIRONMENTAL IMPACT STATEMENT FOR THE REINTRODUCTION OF GRAY WOLVES TO YELLOWSTONE NATIONAL PARK AND CENTRAL IDAHO 3 (1994) [hereinafter RECORD OF DECISION].

(129) 16 U.S.C. [sections] 1539(j)(2)(C)(i) (1994); see also Experimental Populations Regulations, supra note 98, requiring that "experimental populations determined to be `essential' to the survival of a species would remain subject to all of the provisions of section 7" and requiring formal consultation regarding the experimental essential population when a federal agency's proposed action may jeopardize the listed species. In addition, the House Report on the 1982 Endangered Species Act amendments, number 97-567, stores:

   [A]ny experimental population found on any unit of the National Wildlife
   Refuge System or the National Park System remains subject to the full
   protection of Section 7 other than those protections relating to critical
   habitat. In making the determination whether an experimental population is
   of a species imminently in danger of extinction, the Committee intends that
   the Secretary consider whether the loss of the experimental population
   would be likely to diminish appreciably the prospect for the survival of
   the species. If the Secretary determines that it would, the full protection
   of Section 7 should apply for that species.

H.R. REP. No. 97-567 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2834.

(130) "Critical habitat" refers to the geographical region occupied by the species at the time of its listing and additional areas not occupied by the species at the time of its listing that the Secretary of the Interior deems essential for the species' conservation. 16 U.S.C. [sections] 1532(5)(A)(i), (ii) (1994).

(131) 50 C.F.R. [sections] 17.81(0 (1999).

(132) Id.

(133) Wolok, supra note 13, at 10,020.

(134) 16 U.S.C. [sections] 1531(f) (1994).

(135) Strauch, supra note 4, at 51--52.

(136) THOMAS MCNAMEE, THE RETURN OF THE WOLF TO YELLOWSTONE 32 (1997); Strauch, supra note 4, at 52; Causey, supra note 117, at 467 (1998).

(137) Causey, supra note 117, at 467 (1998).

(138) MCNAMEE, supra note 136, at 34.

(139) Id. at 32; U.S. FISH AND WILDLIFE SERVICE, NORTHERN ROCKY MOUNTAIN WOLF RECOVERY PLAN, 1987, reprinted in part in SCHULLERY, supra note 30, at 240, 243, 246 [hereinafter NORTHERN ROCKY MOUNTAIN WOLF RECOVERY PLAN].

(140) NORTHERN ROCKY MOUNTAIN WOLF RECOVERY PLAN, supra note 139, at 246.

(141) MCNAMEE, supra note 136, at 36.

(142) Id. at 37. Section 218 of Pub. L,, Title III, General Provisions (Pub. L. 101-512, Nov. 5, 1990), established the Wolf Management Committee. The ten-member committee was perfectly balanced between pro-wolf and anti-wolf interests, composed of individuals from the National Park Service, the Fish and Wildlife Service, the Forest Service, the fish and game agencies of Idaho, Montana and Wyoming, conservation groups, and livestock and hunting communities. WOLF MANAGEMENT COMMITTEE, Introduction and Background to REINTRODUCTION AND MANAGEMENT OF WOLVES IN YELLOWSTONE NATIONAL PARK AND THE CENTRAL IDAHO WILDERNESS AREA, A REPORT TO THE UNITED STATES CONGRESS (1991) (page numbers unavailable) [hereinafter WOLF MANAGEMENT COMMITTEE].

(143) WOLF MANAGEMENT COMMITTEE, supra note 142, under heading "Background."

(144) Id., under heading "Wolf Management Committee Recommendation."

(145) See H.R. REP. No. 102-256 (1991), reprinted in part in SCHULLERY, supra note 30, at 256 (conference report which accompanied the 1992 Department of Interior appropriations bill (Pub. L. No. 102-154, 105 Stat. 990, enacted Nov. 13, 1991) authorizing the EIS).

(146) SCHULLERY, supra note 146, at 255.

(147) MCNAMEE, supra note 136, at 43; RECORD OF DECISION, supra note 128, at 2.

(148) Wolok, supra note 13, at 10,028.

(149) RECORD OF DECISION, supra note 128, at 3; Endangered and Threatened Wildlife and Plants: Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 60,252, 60,253 (Nov. 22, 1994) [hereinafter Gray Wolf Regulations].

(150) Gray Wolf Regulations, supra note 149, at 60,256. An experimental population in Montana was not possible, because the naturally occurring wolf population would have overlapped with an experimental population in violation of section 10(j)'s "wholly separate geographically' requirement. At the time the EIS on gray wolf reintroduction was written, "about 5 wolf packs (45 wolves) live[d] in Northwest Montana" UNITED STATES FISH AND WILDLIFE SERVICE, THE REINTRODUCTION OF GRAY WOLVES TO YELLOWSTONE NATIONAL PARK AND CENTRAL IDAHO--. ENVIRONMENTAL IMPACT STATEMENT SUMMARY 6 (1993).

(151) RECORD OF DECISION, supra note 128, at 2.

(152) Id. at 3-4.

(153) 50 C.F.R. [sections] 17.84(i)(3) (1999).

(154) Id. [sections] 17.84(i)(3)(ii).

(155) Id. [sections] 17.84(i)(3)(v).

(156) Id. [sections] 17.84(i)(3)(vi).

(157) Id. [sections] 17.84(i)(3)(ix).

(158) Id. [sections] 17.84(i)(3)(iv).

(159) Gray Wolf Regulations, supra note 149, at 60,256; 50 C.F.R. [sections] 17.84(i)(7)(iii) (1999).

(160) 50 C.F.R. [sections] 17.84(i)(7)(iii) (1999).

(161) Id.

(162) Gray Wolf Regulations, supra note 149, at 60,256; 50 C.F.R. [sections] 17.84(i)(7)(iii) (1999).

(163) Gray Wolf Regulations, supra note 149, at 60,252, 60,256.

(164) MCNAME, supra note 136, at 238.

(165) Id. at 285, 290, 142 F.3d 1170, 1172 (9th Cir. 1998).

(166) United States v. McKittrick, 142 F.3d 1170, 1174-75 (9th Cir. 1998).

(167) 16 U.S.C. [sections] 1539(j)(1) (1994).

(168) 142 F.3d at 1175.

(169) Id.

(170) Id.

(171) Id. The FWS definition of a wolf population is "at least two breeding pairs of wolves...." Gray Wolf Regulations, supra note 149, at 60,256. See also infra Part IV. The Tenth Circuit recently overturned the Wyoming District Court's decision on similar grounds to the Ninth Circuit's McKittrick decision.

(172) 142 F.3d at 1175; See Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349, 1376 (D. Wyo. 1997), rev'd, 199 F.3d 1224 (10th Cir. 2000) (district court ordering the recapture from Yellowstone and central Idaho of experimental gray wolves after holding that the gray wolf reintroduction program was invalid). The Tenth Circuit overturned the Wyoming District Court's decision on similar grounds to the Ninth Circuit's McKittrick decision. 199 F.3d at 123436.

(173) 142 F.3d at 1175. "Because the wolves' ESA status depends in part on their location, a wolf that had been introduced into Yellowstone from Canada would either be classified as experimental or, if it lost experimental status because of overlap with natural populations, as endangered." Id.

(174) Id.

(175) Id; 16 U.S.C. [sections] 1538(a)(1) (1994).

(176) See McKittrick, 142 F.3d at 1174-75.

(177) Compare Experimental Populations Regulations, supra note 98, with 16 U.S.C. [sections] 1531(b) (1994).

(178) 16 U.S.C. [sections] 1531 (1994).

(179) Id. [sections] 1531(b).

(180) Id. [sections] 1532(3).

(181) Id. [sections] 1539(j)(2); 50 C.F.R. [sections] 17.81(a) (1999).

(182) See discussion infra Part III. B; Experimental Populations Regulations, supra note 98; H.R. CONF. RFP. NO. 97-835, at 33-34 (1982) reprinted in 1982 U.S.C.C.A.N. 2860, 2874-75; 129 CONG. REC. 24,148-24,158 (1982).

(183) See Wolok, supra note 13, at 10,030.

(184) Id. at 10,026

(185) Id.

(186) Endangered and Threatened Wildlife and Plants: Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in Southeastern Wyoming, 56 Fed. Reg. 41,473 (Aug. 21, 1991).

(187) Wolok, supra note 13, at 10,026.

(188) Id. at 10,027.

(189) Gray Wolf Regulations, supra note 149, at 60,254.

(190) WOLF TRACKS III, supra note 14; Gray Wolves in North America, supra note 14.

(191) Experimental Populations Regulations, supra note 98.

(192) 50 C.F.R. [sections] 17.84(i)(7) (1999).

(193) Id. [sections] 17.84(i)(3)(ix).

(194) Id. The Northern Rocky Mountain Wolf Recovery Plan states that the FWS experimental wolf population rules "may also authorize activities designed to contain the population within designated boundaries...." NORTHERN ROCKY MOUNTAIN WOLF RECOVERY PLAN, supra note 139, at 243 (emphasis added).

(195) See 50 C.F.R. [sections] 17.84(i)(3)(ix) (1999).

(196) See discussion infra Part III.

(197) 50 C.F.R. [sections] 17.84(i)(7)(iii) (1999).

(198) See, e.g., 50 C.F.R. [sections] 17.84(i)(7)(iii) (1999) (outlining courses FWS may take when a wolf is found outside of the experimental area).

(199) See id.

(200) See id.

(201) See id. [sections] 17.84(i)(7)(ii).

(202) See 16 U.S.C. [sections] 1539(j) (1994).

(203) Gray Wolf Regulations, supra note 149, at 60,254. The Gray Wolf Regulations recognize the fact that a successful reintroduction program depends in part upon having genetic diversity within the wolf population and that this may be achieved through "genetic interchange between segments of the population." Id.

(204) Wolok, supra note 13, at 10,019.

(205) Id.

(206) See infra Part III.

(207) See Holly Doremus, Restoring Endangered Species: The Importance of Being Wild, 23 HARV. EVTL. L. REV. 1, 61-62 (1999) (arguing that containment efforts, such as recapturing and removing individuals that leave their experimental population boundaries may have some long-term detrimental effects).

(208) Wolok, supra note 13, at 10,020. "Both Congress and the FWS indicated that the likelihood of an `essential' designation would be small given that the goal of section 10(j) was to foster cooperative management. In practice, the Department of the Interior makes these decisions based primarily on political realities rather than scientific or other criteria. Every experimental population to date has been designated as nonessential." Id. (internal footnotes omitted).

(209) See 16 U.S.C. [sections] 1539(j)(1) (1994) ("[T]he term `experimental population' means any population ... authorized by the Secretary for release....").

(210) See 50 C.F.R. [sections] 17.84(g) (1999) (black-footed ferret experimental population regulations).

(211) See 50 C.F.R. [sections] 17.840) (1999); see also Experimental Populations Regulations, supra note 98.

(212) Doremus, supra note 207, at 39. However, the FWS also has designated the black-footed ferret experimental population, which is entirely composed of individuals from a captive population, as a nonessential population. Id.

(213) 50 C.F.R. [sections] 17.82 (1999); 16 U.S.C. [sections] 1533(d) (1994).

(214) 50 C.F.R. [sections] 1784(i) (1999).

(215) WOLF TRACKS III, supra note 14.

(216) See 16 U.S.C. [sections] 1531(b)(1994).

(217) See id. [sections] 1539(j).

(218) See id [subsections] 1536, 1538.

JENNIFER LI, Student, Northwestern School of law of Lewis & Clark College, J.D. and Certificate in Environmental and Natural Resources Law expected 2001; B.S. 1998, Biology and Political Science, University of Illinois at Urbana-Champaign The author wishes to thank Professor William Funk for his patience and guidance with this Chapter.