Should the gray wolf's legal status be governed by maps or mates?
At stake are Montana and Idaho's ability to have game wardens shoot wolves they suspect of killing too many elk in the Bitterroot Mountains along the state border.
On Tuesday, lawyers for the U.S. government and a coalition of wildlife advocates filed their answers with U.S. District Judge Don Molloy in Missoula.
The states want to use a part of the federal Endangered Species Act called the 10(j) rule for permission to cull the wolves. The rule gives the agency flexibility to kill endangered species when they threaten livestock or big game, although it does not allow public hunting.
The lawsuit started in 2008, when Earthjustice attorneys challenged the U.S. Fish and Wildlife Service's claim that wolves in southern Montana and Idaho were part of a transplanted, "experimental/non-essential" population that could be managed under the 10(j) rule.
Molloy put the case on hold while he presided over the bigger question of whether the Fish and Wildlife Service properly delisted wolves from the ESA. Last August, he ruled the Fish and Wildlife Service erred when it delisted wolves in Montana and Idaho but not Wyoming, saying the ESA didn't allow managing a wide-ranging population differently by state line.
The ruling canceled planned public hunts in Montana and Idaho last fall. Both states then asked for 10(j) hunts, and Molloy returned to the Earthjustice lawsuit. In January, he asked both sides if the transplanted wolves were still experimental/non-essential or fully threatened.
"(T)o what extent is the experimental status threatened if multiple dispersing wolves breed with the experimental population?" Molloy asked the two sides. In the delisting lawsuit, government lawyers argued that transplanted wolves were mingling with the naturally occurring populations of northern Montana and Idaho, which are fully protected. The total population is now estimated to be more than 1,700 wolves in the three-state area.
The lawsuit depends on how the court defines the words "wholly separate geographically."
In Tuesday's filing, Erik Petersen of the U.S. Attorney General's Office argued the map approach.
"When the Service established the Northern Rocky Mountain gray wolf 10(j) population in 1994, it interpreted the ‘wholly separate geographically' requirement to allow for the establishment of an ‘experimental area' or ‘zone,' " Petersen wrote. "At that time, there was no natural gray wolf population in the ‘zone.' Accordingly, the Service determined that any gray wolf inside the ‘zone' would be considered experimental until the Northern Rocky Mountain gray wolf had recovered. Any gray wolf outside the zone, even if that wolf was introduced as experimental, would be considered endangered. This ‘zone' approach, which ignores the origin of each wolf and looks at the wolf's current location to determine listing status is logical because the origin of an individual wolf is difficult to establish with any certainty.
"(T)here is and has been no overlap between non-experimental gray wolf populations and the Northern Rocky Mountain gray wolf 10(j) population, because the experimental and natural populations are clearly delineated until recovery is achieved."
Erasing the line from the map without any official action would leave ordinary citizens in the dark legally, Petersen continued. How could a rancher in the 10(j) area know it was suddenly illegal to defend livestock from wolves if the wolves were allowed to change the rules?
In her brief, Earthjustice attorney Jenny Harbine took the mate argument. She cited congressional reports on the drafting of the 10(j) rule that indicate the population, not the map, is most important. And Molloy's own question brought up government testimony that northern and southern wolves were interbreeding extensively.
"If an introduced population overlaps with natural populations of the same species during a portion of the year, but is wholly separate at other times, the introduced population is to be treated as an experimental population at such times as it is wholly separate," Harbine wrote. "When experimental and nonexperimental populations overlap - even if the overlap occurs seasonally - section 10(j) populations lose their experimental status."
And if that's true, Harbine followed, the Fish and Wildlife Service can't allow Montana and Idaho to kill wolves threatening big game because all the wolves are completely protected under the ESA.
Molloy ordered both sides to bring oral arguments before him on March 24.