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A group of protesters against a federal judge's reconsideration of the removal of wolves from the endangered species list gathers outside the Russell Smith Courthouse Tuesday morning. Photo by KURT WILSON/Missoulian

Government wolf managers have either run roughshod over the Endangered Species Act or successfully returned a threatened animal to healthy numbers, lawyers told a federal judge on Tuesday.

Defenders of Wildlife vs. Salazar asks whether the U.S. Fish and Wildlife Service acted legally in giving Montana and Idaho local control over wolves while keeping Wyoming wolves under federal Endangered Species Act protection.

A coalition of 14 conservation groups sued the government last year. U.S. District Judge Don Molloy held hearings last summer, and decided to let Montana and Idaho go ahead with their 2009 wolf hunts while he considered the case.

On Tuesday, he let both sides explain their arguments in person. His final decision is expected later this year.

"These are not normative questions about the goodness or badness of the decision-making," Molloy told the packed courtroom in Missoula's Russell Smith Courthouse. Instead, he asked the attorneys to explain how he was to know if the wolf was recovered.

Earthjustice attorney Doug Honnold spent much of his time arguing there was no good reason to cut Wyoming out of the herd. He represented the conservation groups who want the wolf returned to threatened status - and federal protection.

"If you have a three-state recovery effort and one refuses to play ball, the only answer is to perpetually keep them listed or go back to the drawing board," Honnold said. "All three states have been reluctant to take on their share of wolf recovery. We hope the Fish and Wildlife Service will go back to the drawing board and come up with something that would actually work."

Bob Lane, chief legal counsel for Montana Fish, Wildlife and Parks, flipped that argument on its head. He said the Endangered Species Act needs flexibility in order to work.

"Otherwise Wyoming, in effect, can maintain a kind of Senate filibuster if they maintain their position," Lane said. "The wolf status would never change. Do you then draw another line with only Montana and Idaho? What purpose is that?"

The line in question is the "distinct population segment" boundary the federal government drew around northwest Montana, north and central Idaho and northwest Wyoming when it reintroduced wolves to the Greater Yellowstone Ecosystem in 1994 and 1995.

At the end of 2009, Montana had at least 525 wolves, while Idaho had about 850 and Wyoming had 320. Those numbers could be low by 10 percent to 30 percent, Lane said. Montana and Idaho each offered wolf hunting seasons last year, and hunters were able to kill 73 and 185 wolves, respectively.

U.S. Department of Justice attorney Mike Eitel said Congress built flexibility into the recovery rules. In this case, he said, the biggest threat to wolves is Wyoming's management plan, which considers them pests in 88 percent of the state that can be killed any time.

"This wolf population is biologically recovered and will remain so under state management," Eitel said of Montana's and Idaho's local authority.

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Molloy questioned whether the decision was a matter of when it is OK to delist a species - not where it is OK. In other words, shouldn't all the wolves in the three-state area be recovered before federal protection is removed?

Honnold said the two-state delisting broke a longstanding principle of endangered species protection.

"They contend their new reading of the Endangered Species Act is buried treasure, lost for 30 years until unearthed by a team of lawyers in the last (presidential) administration," he said. "But the Service can't delist part of a species below a designated population segment without violating the clear language of the Endangered Species Act."

Eitel noted that the wolf delisting decision was reviewed and approved by both the Bush administration in 2008 and the Obama administration in 2009.

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Lane and Idaho state attorney Steven Strack stressed how gray wolves would be better off under state management.

"There's no harm to the species by leaving them listed in Wyoming, and there's benefit to delisting them in Montana and Idaho," Lane told Molloy. "It's like a relay race. The states are the stronger runners, and it's time for them to take the baton."

Strack added there were strong examples where the U.S. Fish and Wildlife Service split animal recovery efforts along state lines. In particular, he said the 9th U.S. Circuit Court of Appeals approved separate management plans for Arizona and California in the case of an endangered horned lizard - which inhabits both states.

Both men also argued that by declaring the wolf a big-game animal, their respective states had legally bound themselves to keeping the wolf healthy and recovered. Montana has pledged to keep at least 15 breeding pairs and 150 wolves, with a more general target of about 450 wolves in the state. Idaho has a management objective of between 500 and 700 wolves, Strack said.

The hearing was briefly interrupted just before 10 a.m. when a Stanford Legal Clinic student, Molly Knobler, collapsed at the lectern while making part of the case for the Greater Yellowstone Coalition. A bailiff cleared the courtroom while paramedics examined her, but she recovered and stayed through the rest of the hearing.

Molloy did not allow any rebuttal arguments, and promised he'd have a ruling "as quickly as I can." Both Montana and Idaho wildlife officials are planning to go ahead with wolf hunts this fall.

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


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