Comments on FWS Wolf Reclassification Proposal for the Northern Rockies
Earthjustice Legal Defense FundNovember 6, 2000
This memorandum sets forth sample comments regarding the U.S. Fish and Wildlife Service's July 13, 2000 proposal to reclassify the gray wolf in the Northern Rockies from an endangered to a threatened status under the Endangered Species Act. We have prepared it for your consideration because the FWS new "downlisting" proposal is complex, implicates a variety of data that are neither generally known nor widely available, and could have grave impacts for wolf recovery in the Rockies.
The comments set forth below can be used in a variety of ways: You may feel free to copy those comments with which you agree into your own written response to the FWS proposal. Or you may take the points made in these comments and incorporate them into your own independently drafted comment letter. Or these comments may simply provide food for thought as you arrive at your own conclusions about the FWS proposal. In short, you may use them as you see fit in crafting public comments on the FWS proposal. Please note that all such comments are due by November 13, 2000.
1. The Reclassification Proposal Violates The Standards Established By The Service's Own Gray Wolf Recovery Plan.
The FWS proposal unjustifiably lowers the bar for wolf recovery in the Northern Rockies. The proposal would imperil wolf recovery in the region by reducing the wolves' legal protections before the wolf population meets the recovery criteria established by the FWS own Northern Rocky Mountain Wolf Recovery Plan. The recovery plan provides that "downlisting" wolves in the Northern Rockies to threatened status may be accomplished only "by securing and maintaining a minimum of 10 breeding pairs in each of two recovery areas for a minimum of 3 successive years." U.S. Fish and Wildlife Service, Northern Rocky Mountain Wolf Recovery Plan 19 (approved Aug. 3, 1987) ("1987 Recovery Plan"). The plan further states that this standard "represent[s] the best available estimate of the minimum numbers and populations necessary to recover and ensure perpetuation of the wolf."
Wolf recovery in the Northern Rockies to date has not even come close to meeting this standard. The FWS repeatedly has defined a "breeding pair" as "as an adult male and an adult female wolf, accompanied by 2 pups that survived at least until Dec 31." U.S. Fish and Wildlife Service, Rocky Mountain Wolf Recovery 1999 Annual Report ("1999 Annual Report"); see also Proposal To Reclassify and Remove the Gray Wolf From the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States, 65 Fed. Reg. 43,450, 43,492 (2000) (to be codified at 50 C.F.R. pt. 17) (proposed July 13, 2000). As of the end of 1999, only one of the three Northern Rockies wolf recovery areas - Central Idaho - had achieved ten breeding pairs under this definition, and then only for a single year (in 1998). See 1999 Annual Report, Table 4.
The FWS statements with respect to this issue are, at best, misleading. The Service's discussion of "Recovery Progress of the Rocky Mountain Gray Wolf" boasts that 1999 yielded seven successful "reproducing packs" in the Northwest Montana recovery area, 12 in the Central Idaho recovery area, and 11 in the Greater Yellowstone recovery area, for a total of 30. 65 Fed. Reg. at 43456-58. These figures ignore the FWS own "breeding pair" definition, which requires the survival of two pups until at least December 31. The number of "breeding pairs" confirmed in 1999 was five in Northwest Montana, nine in Central Idaho, and eight in Greater Yellowstone, for a total of 22. See 1999 Annual Report, Table 4. Notably, none of the three recovery zones reached the ten-breeding-pair threshold in 1999.
The FWS recently has sought to inflate this count by claiming that Central Idaho actually achieved ten breeding pairs in 1999, based upon counting the Selway pack as a breeding pair although only one pup was observed in the pack that year. The FWS has claimed that a second, unobserved, pup existed in the pack based on other evidence, such as tracks, allegedly observed by agency personnel. This approach stands in stark contrast to the FWS position with respect to documenting wild wolves in Central Idaho before the 1995 wolf introductions. At that time, the agency's Wolf Recovery Coordinator took the position that "the program 'confirms' the presence of live wild wolves only when an animal is captured, examined, radiocollared, and released," and assured that the Service would "use the strictest definition of confirmed wolf activity" even for purposes of "delisting the species because the population viability criteria have been reached." Letter from Edward E. Bangs to Charles H. Lobdell (Aug. 12, 1994), at 3. The Service specifically stated that "'softer' or 'weaker' evidence (tracks, scat, kills, photographs, etc.) of possible wolf activity may strongly suggest the possible presence of a wolf or wolves but do not constitute confirmed wild wolf activity." Id. at 5.
But regardless whether the FWS properly documented the Selway pack as a breeding pair in 1999, the Northern Rockies wolf population has never approached the 1987 Recovery Plan's reclassification threshold of ten breeding pairs in two recovery areas for three consecutive years. The Service's contrary statement that the 1999 wolf population survey "achieves the reclassification goal within the Rocky Mountain Plan," 65 Fed. Reg. at 43,457, is simply not true.
2. The FWS Offers No Legitimate Reason To Abandon The Recovery Plan's Reclassification Standard.
The FWS reclassification proposal offers no legitimate justification for abandoning the Recovery Plan's standards. While admitting that wolves in the northern Rockies "have not yet achieved their reclassification criteria in the strictest sense," 65 Fed. Reg. at 43,475, the Service contends that "[t]he goals identified in the Rocky Mountain Plan are intended to ensure a well distributed and viable population in the Rocky Mountains, goals that could be met in a variety of ways while still adhering to the 'biological intent' of the recovery plan." Id. at 43,456.
However, the Service's "biological intent" approach - which amounts to lowering the recovery threshold for the species - is invalid both as a matter of law and of science. The Endangered Species Act requires the FWS to decide whether a species should be listed as endangered or threatened "solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A). The 1987 Recovery Plan explicitly stated that its reclassification goals "were developed based on the most current information and the opinions of recovery team members, other 'experts' on the species, and the Fish and Wildlife Service. They represent the best available estimate of the minimum numbers and populations necessary to recover and ensure perpetuation of the wolf." 1987 Recovery Plan at 19 (emphasis added). The FWS present reclassification proposal offers nothing to suggest that the "best scientific and commercial data available" regarding the minimum standards for wolf reclassification have changed since 1987 - much less that any new data warrant lowering the Recovery Plan's reclassification threshold.
In fact, the best data available suggest that the 1987 Recovery Plan's reclassification criteria are, if anything, insufficient. In conjunction with planning to reintroduce wolves to Yellowstone and Central Idaho, the FWS in 1994 assessed "whether the recovery goals in the Recovery Plan are still valid." Memorandum Regarding A Viable Wolf Population In The Northern Rocky Mountains (Feb. 23, 1994) (copy included as Appendix 9 in the Final EIS on The Reintroduction of Gray Wolves to Yellowstone National Park and Central Idaho) ("FWS Viable Population Memo."). This assessment concluded that the 1987 Recovery Plan's population goals were "somewhat conservative" and "should be considered minimal." Id. This is consistent with the FWS own Eastern Gray Wolf Recovery Plan, which defines a viable wolf population as consisting of 200 wolves for at least five years if the population is isolated, and 100 wolves for at least five years if the population is within dispersal distance from a second population. See 65 Fed. Reg. at 43,454. The Service never has explained why wolves in the East receive a more protective recovery standard than wolves in the Northern Rockies.
The 1994 assessment reached a further conclusion that is especially significant with respect to the FWS current proposal to reclassify the Northern Rockies wolves, given their present numbers and condition. The assessment stated, "It is fairly clear that 10 breeding pairs in isolation will not comprise a 'viable' population (i.e. have a high probability of survival for a long period without human intervention)," and added that "[t]he importance of movement of individuals between sub-populations cannot be overemphasized." FWS Viable Population Memo.
The implications for wolves in the Northern Rockies are clear: As of today, the Northern Rockies wolves have not achieved more than ten breeding pairs in any of the three recovery areas - even for a single year. Further, these populations remain isolated from one another. As the FWS reclassification proposal admits, to date only one wolf has moved between the three recovery areas - a reintroduced male wolf that dispersed from Central Idaho and joined a pack in Northwest Montana in 1997. See 65 Fed. Reg. at 43,458. Thus, applying the Service's own population viability conclusions from its 1994 assessment, wolf recovery has not yet yielded a single viable population in any one of the three Northern Rockies recovery areas. Accordingly, the Service's proposal to "declare success" and to lessen the legal protections afforded to wolves in the Northern Rockies cannot be justified.
3. The FWS Understates Ongoing Threats To The Northern Rockies Population.
The FWS proposal also fails to take accurate account of serious ongoing threats posed to the Northern Rockies wolf population. In determining whether a species should be listed as endangered or threatened, the FWS must consider "the inadequacy of existing regulatory mechanisms." 16 U.S.C. § 1533(a)(1)(D). Yet the Service fails to appreciate that gray wolves in the Northern Rockies face a serious threat from inadequate existing regulatory mechanisms in the form of the Service's own wolf control program. Nowhere is this threat more imminent than in the Northwest Montana wolf recovery area - which, paradoxically, contains the only Western wolf population that will be affected by the Service's "downlisting" proposal (the other two recovery areas contain "experimental, non-essential" wolf populations whose legal protections are unchanged under the FWS plan).
Again, the FWS reclassification proposal includes numerous misleading statements regarding this issue. The FWS admits that "humans were the largest cause of wolf mortality in northwestern Montana," and that "[w]olf control was the leading cause of death for wolves in northwestern Montana," 65 Fed. Reg. at 43,467. But when it comes to discussing the adequacy of existing regulatory mechanisms, the FWS carefully states only that "[t]he control of problem wolves depredating livestock resulted in the removal of less than six percent of the wolves in northwestern Montana between 1987 and 1995," and adds that "[t]his level of mortality is not expected to prevent wolf populations from reaching recovery levels." Id. at 43,472.
What the FWS fails to state is that wolf controls in Northwest Montana - and their impacts on the Northwest Montana wolf population - dramatically increased after 1995, and have continued at a high rate through 1999. The FWS own records show that its wolf control program killed 25 percent of the Northwest Montana wolf population in 1997, 8 percent in 1998, and 14 percent in 1999. See 1999 Annual Report, Table 5.
The science upon which the FWS itself relies makes clear that - to use the Service's own terms - this rate of wolf killing would "prevent wolf populations from reaching recovery levels." 65 Fed. Reg. at 43,472. The Service's own assessment of the level of wolf control that is consistent with recovery objectives is based upon a single study, Population Dynamics of Wolves, by Lloyd B. Keith. See Interim Wolf Control Plan for Northwestern Montana and the Panhandle of Northern Idaho, at 6 (Sept. 1999) (citing Keith study). Yet Keith's study documented an increasing wolf population - meaning a population moving toward recovery levels - only where annual killing by humans did not exceed 10 percent of the population. The FWS wolf control program in Northwest Montana has exceeded that threshold in two of the past three years.
Nowhere in the reclassification proposal does the FWS even address, much less explain, how wolves in Northwest Montana can be considered adequately protected by existing regulatory mechanisms when the level of wolf killing under current regulations has exceeded levels that would permit recovery for two of the past three years. Instead, the FWS seeks to justify a proposal to reduce the legal protections for these wolves to allow even more liberal wolf killing in Northwest Montana. This is a move in precisely the wrong direction. The Service should be proposing to increase legal protections to insure that wolves in Northwest Montana will achieve recovery, as the ESA requires.
4. The Present Endangered Listing For Northern Rockies Wolves Provides Sufficient Regulatory Flexibility.
Finally, the FWS proposal is wrong in suggesting that "downlisting" wolves in the Northern Rockies is necessary to provide sufficient "regulatory flexibility in order to control problem wolves and address other conflicts that might otherwise constrain recovery as wolf populations increase." 65 Fed. Reg. at 43,475. The FWS has all of the regulatory flexibility that it needs to address wolf management issues under the present endangered listing.
Pursuant to ESA Section 10(a)(1)(A), the Service may permit the taking of an endangered species "for scientific purposes or to enhance the propagation or survival of the affected species." 16 U.S.C. § 1539(a)(1)(A); see also 65 Fed. Reg. at 43,483 (noting authority to permit taking of endangered species). Despite possessing such statutory authority, however, the FWS has failed to give any consideration in its present proposal to utilizing Section 10(a)(1)(A) permits to obtain the "regulatory flexibility" that the Service seeks to create by "downlisting" the Northern Rockies wolves. The FWS apparently believes that some provision for noninjurious and even injurious harassment of wolves is necessary. See 65 Fed. Reg. at 43,471. Yet permits issued pursuant to Section 10(a)(1)(A) could authorize such noninjurious or injurious harassment under the current legal framework, without any need for a "downlisting." Indeed, given that the Service itself has killed numerous wolves in Northwest Montana under the asserted authority of a Section 10(a)(1)(A) permit, it can hardly question that mere harassment of wolves would fall within the Section 10(a)(1)(A) permitting authority.
As for the Service's proposal to authorizing broader lethal control of wolves in the Northern Rockies, there is no legitimate basis for such an approach. The Service proposes to enact a special rule that would allow private landowners to kill wolves observed in the act of attacking livestock or pets, without any prior authorization by FWS or any other wildlife agency (see Section (3)(iii)(A) of the proposed rule). As discussed, the only wolf population that would be affected by this rule change is the Northwest Montana population. Increased authorization for wolf killing is the last thing this population needs. As the Service itself admits, humans have been "the largest cause of wolf mortality in northwestern Montana." 65 Fed. Reg. at 43,467. As a result of human-caused mortality, the Northwest Montana wolf population has made no progress toward recovery goals for the past three years and has yet to reach the target level of 10 breeding pairs for even one year. The Service has not explained - and cannot explain - how its proposal to liberalize the rule governing wolf killing will promote recovery in these circumstances.
In sum, the FWS has ample authority pursuant to ESA Section 10(a)(1)(A) to permit non-lethal harassment of wolves in the Northern Rockies without any need for a change in the wolves' listing status. The Service's proposal to permit the public to kill wolves is not appropriate at this time.