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Lifelong hunters Garth Rives, left, and Keith Steigers talk wolves and hunting during an anti-wolf rally on the sidewalk in front of the Russell Smith Federal Courthouse on Thursday afternoon. Photo by MICHAEL GALLACHER/Missoulian

Wolves faced two kinds of hunts during a hearing before U.S. District Judge Donald Molloy on Thursday.

A proposed settlement between wolf advocates and the federal government could open up public wolf hunting in Montana and Idaho, if Molloy supports it.

But he's also considering an older case that considers how federal and state authorities could kill wolves while they're still protected under the Endangered Species Act.

Complicating matters, the settlement has fractured both sides of the wolf delisting case, resulting in a courtroom Thursday with almost two dozen lawyers representing different factions.

Molloy split his afternoon into two parts. The first concerned the settlement offered by the federal government and 10 of the original 14 conservation groups that would return wolf management to Montana and Idaho state authority.

The second, longer portion got into the more complicated case about whether endangered wolves can be hunted under certain government exceptions.

***

The settlement discussion had three possible outcomes, called indicative rulings. Molloy could decide it had no value and ignore it, leaving the wolf delisting case before the 9th U.S. Circuit Court of Appeals. Or he could say he liked the settlement and indicate to the 9th Circuit that the matter should end right there.

The third option would be to say the settlement raised good questions that needed more courtroom time, and that Molloy would like to have the case back in his jurisdiction. Because the case has been officially moved to the 9th Circuit, Molloy can only request permission to get back in the driver's seat.

Several of the attorneys in the room predicted both Molloy and the appellate judges would take the third option. That would both reduce the workload for the higher court and give Molloy a chance to explore how the settlement would work.

"The settlement holds great promise in removing the uncertainty in how gray wolves are protected," U.S. Department of Justice attorney Michael Eitel told Molloy.

The agreement would turn off part of Molloy's Aug. 5 ruling that returned wolves to Endangered Species Act protection. It would allow Montana and Idaho to manage and hunt wolves, but keep them under federal protection in Wyoming. It would also leave fledgling wolf populations in Washington, Oregon and Utah on the endangered species list until the U.S. Fish and Wildlife Service can come up with a regionwide delisting plan.

Michael Senatore represented the 10 environmental groups who supported the settlement. He added that a recent 10th U.S. Circuit Court of Appeals ruling supporting Wyoming's wolf management plan could further help resolve the wolf question. The key, he said, was the settlement's call for more scientific investigation and monitoring of Rocky Mountain wolves.

"At the end of this review process, we'll have a new body of science that will provide the framework for wolf recovery," he said.

The four "unsettling parties," as attorney James Tutchton called them, were the Alliance for the Wild Rockies, Humane Society of the United States, Friends of the Clearwater and Western Watersheds Project.

"They (the settlement members) are asking you to return to force a rule you found illegal," Tutchton told Molloy. "There's been no change in law or fact. What is different now than the situation in August?"

Tutchton argued that the original coalition of plaintiffs all agreed state management plans "allow more wolf-killing than could happen under the Endangered Species Act protection." The dissenting groups still believe that is the case, he said.

"The science already exists - a viable wolf population is 2,000 to 5,000 animals and requires a certain amount of genetic connectivity," he said. "What is clear from this settlement is hundreds of wolves would die, and whatever progress toward recovery will backslide."

Molloy didn't drop any hints what he thought about the settlement or either side's argument. Instead, he moved to what could be called the 10-J part of the hearing.

***

That case goes back to 2005, when the Fish and Wildlife Service issued new guidelines for how an endangered but experimental species population could be hunted if it was causing problems. The same coalition of environmental groups sued the government, saying the rule couldn't apply to Rocky Mountain wolves, because the experimental population no longer existed.

To complicate matters, Tutchton represented all 14 members, although he admitted the factions that were "settling" and "unsettled" on delisting had somewhat different arguments.

When a small group of wolves was transplanted into the mountains in and around Yellowstone National Park in 1994 and 1995, they were officially considered an "experimental, nonessential" population. The 10-J rule allows state or federal officials to kill such wolves if they are causing management problems, like eating livestock or elk.

But the guidelines say the population must be separate from naturally occurring endangered wolf populations, which can't be hunted under the 10-J rule.

Three mingled and contradictory issues need to be sorted out in this case. One was what determined "separation." Tutchton said the experimental and natural wolf populations had mixed, and the guidelines said they are now all natural endangered wolves - safe from a 10-J hunt.

Government attorney Eric Peterson said lines on a map was the only fair way to distinguish between the two populations. If a wolf was in the experimental zone, it could be hunted with a 10-J plan.

Peterson also argued the 10-J rule was necessary for the "social tolerance" of wolves. Congress put the rule in place so local people kept some control of experimental populations, which encouraged them to cooperate with federal recovery plans.

Tutchton countered that the 10-J plan is intended for the conservation of wolves. If it allowed them to be hunted, he said, "the argument is that once the wolves are dead, people will accept them."

Both sides were tangled by the fact there are now almost 1,600 wolves in the three-state area. Molloy circled several times around the conundrum that if wolves are well-dispersed and populous, they can't be experimental, but if they're not officially delisted by an agency, their experimental status hasn't changed. And Molloy's own August ruling returned the wolf to the endangered species list.

A bigger question concerning the settlement remains. If it is approved, the 10-J issue disappears because wolves are no longer threatened or endangered. Except in the matter of the "unsettled" environmental groups or several parties on the government side, such as Safari Club International and the National Rifle Association, who've filed briefs saying they still want their day before the 9th Circuit.

On Wednesday, a 9th Circuit official said that court would hold off for 30 days while Molloy decides what to do on the settlement question. Molloy promised to do that "as quickly as I can."

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

 

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