Hunt is on: Molloy says wolf season can continue in Idaho, Montana

2009-09-09T22:00:00Z Hunt is on: Molloy says wolf season can continue in Idaho, MontanaBy ROB CHANEY of the Missoulian missoulian.com
September 09, 2009 10:00 pm  • 

Wolf hunters won the battle, but wolf supporters may win the war in the lawsuit over hunting the once-endangered species in Montana and Idaho.

U.S. District Judge Don Molloy turned down requests to stop 2009 wolf hunting seasons in the two states in an order released late Tuesday evening. In his 14-page opinion, Molloy said the 14 conservation groups opposing the hunts failed to show wolf populations would suffer irreparable harm, even if individual wolves were killed by hunters.

That means Idaho's already open wolf hunting season may continue and Montana hunters may begin hunting wolves in four backcountry regions starting next Tuesday, Sept. 15. Idaho hunters had reported four kills as of Wednesday.

"We still have a population that passed the recovery goal some time ago," U.S. Fish and Wildlife Service spokesman Joshua Winchell said in the wake of Molloy's ruling. "That's a wonderful success story that anyone interested in wolf recovery should be happy about. That plan is consistent with the overall goal of ensuring the continued success of wolves.

"Wyoming didn't put forward a plan that we were comfortable with. Montana and Idaho did. We're going to maintain our ability to manage wolves in Wyoming. At the end of the day, the Endangered Species Act is a law, and we have to make sure we follow the law."

Idaho Fish and Game commissioners authorized a quota of 220 wolves for public hunting this fall. Montana's quota is 75 wolves. Federal and state government shooters also kill numerous wolves every year in response to livestock attacks.

"It really gives us a chance to show Montana can manage wolves smartly and carefully, like it manages all other wildlife in the state," FWP spokesman Tom Palmer said Wednesday morning. "A fair-chase and science-based hunt is a critical part to the ultimate solution to manage wolves in Montana."

But Molloy also ruled that the U.S. Fish and Wildlife Service was likely to lose its case over the bigger question of whether wolves were appropriately removed from federal Endangered Species Act protection. Delisting the wolf in Montana and Idaho but not in Wyoming appeared to violate the agency's own rules, he said.

"The Service has distinguished a natural population of wolves based on a political line, not the best available science," Molloy wrote. "That, by definition, seems arbitrary and capricious."

Last year, the federal government attempted to take wolves off the endangered species list. The same coalition of conservation groups sued, and Molloy ruled the federal effort was illegal because Wyoming's wolf management plan was inadequate.

This May, the Fish and Wildlife Service proposed a new delisting in Montana and Idaho, with Wyoming's wolves remaining under federal protection. The conservation groups sued again, arguing the population had to be considered as a whole in the three states. They also asked Molloy to block the 2009 hunts.

The wolf advocates had to clear two hurdles to win a preliminary injunction stopping the wolf hunt. The first was to show they were likely to win the main lawsuit. The second was that irreparable harm would befall wolves if the hunt took place before the main lawsuit was heard in court.

"I think it's the better half of the loaf," EarthJustice attorney Jenny Harbine said of her client's "half-a-loaf" result. "The court determined the delisting of wolves in the northern Rockies is likely illegal, but declined to stop the hunting."

In Wednesday's ruling, Molloy wrote that all the proof before him showed hunting wouldn't hurt the wolf population as a whole.

"(A) wolf population such as the northern Rocky Mountains DPS (distinct population segment) can sustain single-season harvest rates in excess of 30 percent," Molloy wrote. "The conservative estimate in the record for the northern Rocky Mountains growth rate of 22 percent is in excess of the two states' planned kills of 21 percent of the DPS."

But that distinct population segment designation would be a problem for government lawyers to overcome, Molloy wrote. During the Aug. 31 court hearing in Missoula, Molloy observed that Fish and Wildlife Service had previously said a DPS couldn't be split up, but now was arguing the opposite.

"I imagine the defendants, the states and Fish and Wildlife Service, are scratching their heads and trying to figure out what to do next," Harbine said. "This puts them in a perilous position, legally. The court has already told them they're likely to lose the case."

Harbine said her clients were still debating whether to appeal Molloy's decision to the U.S. Ninth Circuit Court of Appeals. That move could uphold Molloy's decision blocking the hunt, reverse it or order Molloy to reconsider different parts of the case.

If no appeal is filed, the full case would probably not reach a courtroom before early 2010.

Reporter Rob Chaney can be reached at 523-5382 or at rchaney@missoulian.com.

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