The gray wolf was persecuted almost to extinction in the United States. Under the Endangered Species Act, the gray wolf has made a great recovery. Several legal issues are still unresolved however.
I. Introduction
A. Brief Biology of the Gray Wolf
Gray wolves (Canis lupus) are the largest wild members of Canidea, the dog family. 68 FR 15804 (Apr. 1, 2003). They range from between 40 and 175 pounds, depending upon sex and subspecies, and their fur is often gray, but can range from between white to black. Wolves mostly prey on medium to large mammals, including elk, deer, and moose, although they have been known to eat small mammals, birds, and large invertebrates. Id. at 15804-05 . When humans are around, gray wolves sometimes prey on domestic animals such as cattle, sheep and dogs. Wolves are social creatures, usually living in packs containing two to twelve members, however, pack numbers have been observed to reach as many as 37 members. Packs usually contain a breeding pair and its current offspring, the breeding pair’s offspring from the year before, and sometimes unrelated wolves. Packs commonly occupy and defend territories between 20 and 240 square miles from other packs and individual wolves, although territories as large as over 1000 square miles have been observed. Normally the breeding pair in a pack produces a litter of between 4 and 6 pups in April or May. Yearling pups stay with the natal pack or disperse as lone wolves to distances of up to 500 miles away. Lone wolves either remain as lone wolves, or find a mate and unoccupied territory and produce litters of their own. Id.
B. Brief Natural and Legal History of the Gray Wolf
Like humans, gray wolves are amazingly adaptable and can live in a variety of climates and conditions. Historically, gray wolves occupied varied landscapes and climates, living throughout most of North America, Europe, and Asia. 68 FR 15804 (Apr. 1, 2003). In North America their range spanned from as far north as Alaska, Canada, and Greenland, to as far south as Southern Mexico. Id. The only areas in the lower 48 states of the United States thought not historically occupied by the gray wolf were the Southeastern United States (an area encompassing parts or all of 16 different states from as far north as Virginia to as far west as parts of Texas see http://www.fws.gov/midwest/wolf/esa-status/dps-map.htm ) (which is instead populated by the Red Wolf (Canis rufus)), and extremely arid areas and mountaintops of the Western United States. Id.
The Europeans who settled the United States brought with them a culture of fear and hatred for wolves. See Wyoming v. Dept. of the Interior , 360 F. Supp. 2d 1214, 1218 (D. Wyo. 2005) . Following in the footsteps of their ancestors the ancient Greeks, who had offered bounties on wolves, the settlers’ new State and Federal governments also had bounties on wolves. Id. at 1218 n.1 , 68 FR 15805 . This encouraged widespread persecution of the wolf which included poisoning, trapping, and shooting wolves. Id. By the early 1900s the gray wolf had almost entirely disappeared from the lower 48 states of the United States due to human activity. Wyoming v. Dept. of the Interior, 360 F. Supp. 2d. at 1218.
Things began to get better for the gray wolf beginning in 1973 with the passage of the Endangered Species Act (ESA), 16 U.S.C. §§ 1531, et seq. The ESA requires the Federal government to help endangered and threatened species recover from their low numbers so that they are no longer in danger of qualifying to be classified as endangered or threatened in the foreseeable future. By the time of the passage of the ESA in 1973, the gray wolf in the lower 48 states of the United States had lost 95% of its previous range and likely numbered only several hundred, living mostly in Minnesota and Michigan. 68 FR 15805 .
In 1973, the United States Fish and Wildlife Service (FWS) first listed a subspecies of the gray wolf, the Northern Rocky Mountain Wolf (Canis lupus irremotus), as an endangered species under the ESA. Wyoming v. Dept. of the Interior, 360 F. Supp. 2d. at 1218. In 1978 the FWS revised its earlier listing to include the entire species of gray wolf (Canis lupus) as endangered throughout the lower 48 states of the United States, except in Minnesota, where the wolf was listed as threatened. Defenders of Wildlife v. Dept. of the Interior , 354 F. Supp. 2d 1156, 1161 (D. Or. 2005). Within the last decade, with the help of the strict regulations and successful reintroduction programs promulgated under the ESA, wolf prospects and numbers have greatly increased in the lower 48 states of the United States, particularly in the western Great Lakes Area and the northern U.S. Rocky Mountains. Wyoming v. Dept. of the Interior, 360 F. Supp. 2d. at 1218. Recent surveys have shown about 2445 wolves in Minnesota, 323-339 wolves in Wisconsin, and 278 wolves in Michigan. Defenders of Wildlife v. Dept. of the Interior , 354 F. Supp. 2d at 1161. As of 2001, surveys showed 563 wolves in the Northern Rockies, which include the greater Yellowstone area and central Idaho. 68 FR 15804, 15810. Although it is impossible to know exactly how many wolves existed before European settlers came to North America, it is thought that there were as many as 400,000 of them. See http://www.greenjournal.com/showarticle.asp?404;http://www.greenjournal.com/article447.asp
II. Current Legal Issues Affecting the Gray Wolf
A. Section 10(j) of the ESA and experimental populations
In 1982 Congress amended the ESA to include Section 10(j) so that the FWS could more easily help endangered and threatened species recover. Section 10(j) authorizes the Secretary of the Interior to transport and release “any population . . . of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such a release will further the conservation of such species.” 16 U.S.C. § 1539(j)(2)(A). Before engaging in this action the Secretary must determine whether such a transportation and release is necessary for the continued existence of the threatened or endangered species and designate the experimental population as “essential” or “nonessential.” See Wyoming v. Dept. of the Interior , 360 F. Supp. 2d at 1218 , 16 U.S.C. § 1539(j)(2)(B). There does not seem to be much difference in the treatment of essential and nonessential experimental populations, and there have only been two cases discussing the introduction of experimental populations. See United States v. McKittrick , 142 F.3d 1170; Wyoming Farm Bureau Federation v. Babbitt , 987 F. Supp. 1349 (D. Wyo. 1997) rev’d, 199 F.3d 1224 (10th Cir. 2000). It is likely that the FWS will usually designate a reintroduced population as “nonessential” because if it has a population from which to take individuals for reintroduce elsewhere, it is likely that that population will still be there to take more individuals from if the first reintroduction effort fails. Additionally, the FWS has fewer requirements to meet by law if it designates a population as “nonessential” than if it designates it as “essential.” For example, critical habitat (land deemed essential for the survival of the species) shall not be designated for nonessential experimental populations. 16 U.S.C. § 1539(j)(2)(c)(ii).
Each member of an experimental population shall be treated as a threatened species, which means that special rules may be made for the population, allowing things such as “take” which would not be allowed if the species was designated as endangered. See 16 U.S.C. § 1539(j)(2)(C). Wolves which are part of an experimental population therefore receive less protection than endangered species status provides, as laid out under ESA section 10(j), 16 U.S.C. § 1539(10)(j). The public has a chance to comment before the new population arrives and before the Secretary promulgates the special rules, which allows the Secretary to tailor the special rules to the specific needs of each experimental population and the people who coexist with it. Wyoming Farm Bureau Federation v. Babbitt , 199 F.3d 1224, 1232 (10th Cir. 2000).
Congress added section 10(j) to the ESA in order to lessen political opposition to reintroduction efforts. Wyoming Farm Bureau Federation , 199 F.3d at 1231. For example, a livestock owner might be less inclined to object to wolves being reintroduced into her area if she knows that special rules can be made that will allow her to kill a wolf seen attacking her animals. Even if this measure did help to lessen ranchers’ opposition to the reintroduction of the wolves, most ranchers and farmers are still against the reintroduction efforts because wolves sometimes kill their farm animals such as cattle, sheep, horses, and dogs.
B. Where are the wolf nonessential experimental populations?
There are three Section 10(j) nonessential experimental populations in the lower United States today. One is in the greater Yellowstone area, one is in Central Idaho, and one is in New Mexico and Arizona. See 50 C.F.R. § 17.84(k) and 17.84(i)(7).
In November 1994, the United States Department of Interior made a rule which authorized the introduction of experimental, non-essential gray wolf populations into Yellowstone Park and central Idaho. 59 FR 60252 (November 22, 1994). It called for releasing of 90-150 wolves from Canada into designated areas over a 3-5 year period. Wyoming Farm Bureau Federation v. Babbitt , 199 F.3d 1224, 1229 (10th Cir. 2000).
In 1995 and 1996, FWS reintroduced wolves to the northern Rocky Mountains (which include parts of Wyoming, Montana, and Idaho). 68 FR 15808. In 1995, the FWS brought fourteen western Canadian gray wolves into Yellowstone Park, and seventeen more a year later. Wyoming v. Dept. of the Interior , 360 F. Supp. 2d at 1219 . This population has been successful, growing to 663 wolves in 2002. Defenders of Wildlife v. Dept. of the Interior , 354 F. Supp. 2d 1156, 1161 (D. Or. 2005).
The final experimental rules expressly allow a livestock producer to “take” a wolf observed attacking livestock on her property so long as the “taking” is reported within 24 hours. 59 FR 60252, 60264, 60279 . The rules also allow for the FWS flexibility in managing “problem” wolves. Id. at 60265, 60279 . Management of these experimental populations is controlled by 50 C.F.R. § 17.84(i).
Mexican gray wolves are also being introduced in New Mexico and Arizona, pursuant to a final rule released in 1998. See 63 FR 1752 (January 12, 1998); 50 C.F.R. § 17.84(k). The Mexican gray wolf program calls for managed breeding of captive animals. 68 FR 15804, 15818 . As of August 2002, Mexican gray wolf numbers had increased to 247 animals. 68 FR 15804 , 15818 . Releases continue every year in order to reach a goal of 100 wild animals. Id. These wolves can be legally killed by ranchers on private land if they are seen attacking livestock. See 50 C.F.R. § 17.84(k).
C. Legal challenges under 10(j)
Many people who were happy not to have wolves around were not so happy when the wolves were reintroduced. Therefore, it is not surprising that the FWS faced quite a few legal challenges after it introduced the nonessential experimental populations of wolves to their new home. In United States v. McKittrick , 142 F.3d 1170 (9th Cir. 1998), a man convicted of shooting a wolf that had migrated from the Yellowstone National Park region claimed that the FWS had illegally reintroduced the wolves. He claimed that because there had been some lone wolf sightings in the Yellowstone area before the introduction of the nonessential experimental population, the FWS had violated the conditions of Section 10(j)(1) which requires that the experimental population be “wholly separate geographically from nonexperimental populations of the same species.”
The court found that the requirement of being “wholly separate” only applies to populations, and not to individuals. United States v. McKittrick , 142 F.3d 1170, 1175 (9th Cir. 1998). So, an introduced population may not be placed on top of an already existing population’s habitat, but it may be placed on top of an individual’s habitat. A population is defined as “at least two breeding pairs of gray wolves that each successfully raise at least two young to December 31 of their birth year for 2 consecutive years.” 59 FR 60252, 60256. Because at the time the FWS reintroduced wolves to Yellowstone National Park, there were no reproducing pairs of wolves, the FWS had not violated this section of 10(j) of the ESA. 59 FR 60252, 60256 .
Similarly, in Wyoming Farm Bureau Federation , 199 F.3d 1224, 1229 (10th Cir. 2000), the legal validity of the wolf reintroduction rules were disputed by individuals who lived and farmed near the wolf reintroduction areas. The plaintiffs claimed that because lone wolves from outside the nonessential experimental population could potentially enter the area where the nonessential population was located and breed with the introduced wolves, the FWS had violated the “wholly separate” requirement of Section 10(j)(1) of the ESA.
The court stated that congressional intent in making the “wholly separate requirement” was to prevent experimental populations from being placed on top of pre-existing naturally occurring populations. This in turn would prevent the members of the pre-existing population from losing or receiving less protection under the ESA when, by virtue of being in the same geographic location, they would be classified as members of the introduced experimental population. Wyoming Farm Bureau Federation , 199 F.3d 1224, 1233 (10th Cir. 2000). However, the court found that: 1) lone dispersing wolves do not constitute a population because a population is a “potentially self-sustaining group ‘in common spatial arrangement’” and 2) because wolves can and do roam for hundreds of miles, it would be unrealistic to expect that wolves from other populations would never interbreed with wolves reintroduced in the experimental populations. Wyoming Farm Bureau Federation , 199 F.3d at 1234, 1237.
The experimental populations highlight but one of the issues in wolf protection. There is also great tension over what the status of wolves is under the ESA: are they listed as endangered or threatened or are they delisted, and how should such determinations be made? The status of wolves under the ESA is of great importance because that determines what people may and may not do to wolves.
D. Section 4(d) of the ESA; different treatment afforded threatened vs. endangered wolves
Subject to a few exceptions listed in other areas of the statute, Section 9(a) of the ESA lists forbidden actions against endangered species. These forbidden actions include the importing, exporting, taking, possessing, selling, delivering, offering to sell, etc. of individual animals that are part of the endangered species.
Later on in the statute, the word “take” is further defined to include any possible action that could cause actual injury to an endangered species; “take” is defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(3)(19). “Harass” has been defined by the FWS as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering” 16 C.F.R. § 17.3
Whereas it is forbidden to “take” endangered species, section 4(d) of the ESA allows the Secretary of the Interior to “issue such regulations as he deems necessary and advisable to provide for the conservation of such species.” Therefore, when a species is listed as threatened, as opposed to endangered, the Secretary may issue regulations which allow “take” or other actions that would be prohibited if done to an endangered animal. However, the regulations must have as their purpose “the conservation” of the species. For example, in Sierra Club v. Clark , 755 F.2d 608, 620 (8th Cir. 1985) , the court ruled that a 4(d) regulation allowing sport hunting of the gray wolf in Northern Minnesota, where it was listed as “threatened” was unlawful because it could not be seen as benefiting the wolf or “for the conservation of the wolf.”
When the FWS came out with its final rule on April 1, 2003, downlisting the gray wolf from endangered to threatened in much of the lower 48 states, it simultaneously made regulations which allowed “take” of wolves by private parties. (This final rule was subsequently vacated on January 31, 2005, see discussion below). 68 FR 15804, 15863 . Stating that its intention was to aid the “conservation of the gray wolf . . . by reducing actual and perceived conflicts with human activities, thus reducing the likelihood and extent of illegal killing of wolves,” the FWS final rule permitted private landowners and livestock grazing permittees to “harass wolves in a noninjurious manner at any time and for any reason,” as well as apply for and receive permits to deliberately harass wolves in an injurious manner under certain circumstances, and to kill any wolf seen attacking livestock. Id. at 15865-66 .
Whereas in the experimental population areas, killing of wolves seen attacking livestock was only allowed if there were six or more breeding pairs in the region, for the rest of the Western and Eastern DPSs, killing of wolves seen attacking livestock was permitted regardless of how many breeding pairs were in the area. Id. at 15867 . This is consistent with the FWS’s stated belief the wolf populations outside the 3 designated core areas (the three designated nonessential experimental populations) were not important for the conservation of the gray wolf. See Id. at 15868 . This contention is very controversial contention and many people disagree – saying that 3 populations of wolves living in less than 10 states is not full wolf recovery under the ESA when wolves used to roam throughout the lower United States.
There is disagreement over how to best help the wolf survive. Clearly, wolf populations of the Northern Rocky Mountain and Western Great Lake nonessential experimental populations have done extremely well, even though some “take” of wolves has been and is allowed. The FWS seems of the opinion that allowing “take” of gray wolves would actually enhance their survival by allowing livestock owners to kill them if they are seen attacking livestock. The FWS states that allowing this would help wolves overall by encouraging them to stay away from people, making wolf-human conflicts less, decreasing animosity of landowners to the idea of conserving wolves, and decreasing the number of illegal wolf killings. See 68 FR 15804, 15864 . Other people believe that the ESA is very clear that if a species is endangered, this kind of killing is not permitted, even if people in the surrounding area are not happy about that.
Some critics of the FWS do not like its policies that allow for the killing of wolves. Other critics of the FWS believe the FWS does not use sound science in its decisions to downlist endangered species such as the wolf.
III. The Distinct Population Segment (DPS) Designations and Recent Court Decisions
The ESA requires the Secretary of the Interior to determine whether a species is endangered or threatened. 16 U.S.C. § 1531 et. seq. Since the Secretary of the Interior is the head of the FWS, the Secretary can delegate this authority to other people within the FWS. The ESA defines “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16). This is slightly different from the scientific and taxonomic definition of “species,” which is, “a category of biological classification . . . comprising related organisms or populations potentially capable of interbreeding . . . .” Merriam-Webster’s Collegiate Dictionary 1198 (11th ed. 2005). Therefore, whereas in scientific terms, a species is not endangered unless its numbers worldwide were so low that there is danger that that entire type of life-form will disappear from the planet, under the ESA, a species can be listed as endangered or threatened in a part of its range, even though elsewhere that same type of life-form may be thriving. In other words, the Secretary may list something less than the whole scientific species as endangered or threatened, she may list a subspecies or a Distinct Population Segment (DPS) as endangered of threatened. 61 Feg. Reg. 4722 . Consequently, the wolf could be listed as endangered in one area, while being classified differently (as either threatened or not listed) in another area.
Whether the FWS divides a species into DPSs or not, under the ESA, it must determine whether that species is endangered by looking to see whether that species is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6). A “threatened” species is one that “is likely to become an endangered species within the foreseeable future . . . .” Id. at 1532(20). The FWS must determine whether a species (which could be a DPS) is endangered or threatened by considering five factors listed in the ESA. 16 U.S.C. § 1533(a)(1) .
In 1996 the FWS promulgated a rule ( Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act - 61 FR 4722 ) which had as its purpose creating a clear and consistent policy with regard to how and when a species should be divided into DPSs. Id. In deciding whether to designate a DPS, the policy directs the FWS to look at whether the DPS is discrete and significant in relation to the species to which it belongs. Id. at 4725 . The policy requires that at the time of designating a DPS, the reasons why the agency believes the DPS satisfies the policy requirements must be explained, and that in determining the existence of a DPS “sound biological principles” must be used. Id. at 4722-23 . The rule predicts that by allowing the FWS to list, delist, and reclassify a DPS instead of the entire species in its entire range, the agency can “protect and conserve species and the ecosystems upon which they depend before large-scale decline occurs that would necessitate listing a species or subspecies throughout its entire range.” Id.
In 2003 the FWS conducted a status review of the gray wolf which lead to the downlisting of the gray wolf in much of the United States from endangered to threatened. 68 Fed. Reg. 15804 (Apr. 1, 2003 ). Prior to the 2003 final rule, gray wolves were listed as threatened in Minnesota, and as endangered in the other lower 47 states of the United States, except where they were listed as nonessential experimental populations (NEPs) (NEPs exist in all of Wyoming, and in parts of Montana, Idaho, Arizona, New Mexico, and Texas). This final rule divided the gray wolf into three distinct population segments (DPSs), the Eastern DPS (comprised of North Dakota, South Dakota, Nebraska, Kansas, Minnesota, Iowa, Missouri, Wisconsin, Illinois, Michigan, Indiana, Ohio, Pennsylvania, New York, New Jersey, Massachusetts, Connecticut, Rhode Island, Delaware, Vermont, New Hampshire and Maine), the Western DPS (comprised of Washigton, Oregon, California, Nevada; and parts of Idaho, Montana, Utah, and Colorado), and the Southwestern DPS, and downlisted the gray wolf from endangered to threatened in the Eastern and Western DPSs. Id . See Gray wolves were removed from the protection of the ESA entirely in parts or all of 16 Southeastern states, because the FWS determined that gray wolves did not historically reside in those states. Id. In determining when each of the three DPSs should be downlisted or delisted, the FWS stated that its intention was to concentrate on three core populations – one in each DPS. 68 FR 15804 at 15825 . In the Eastern DPS, the core population would center around Minnesota, Wisconsin, and the Upper Peninsula of Michigan. In the Western DPS, the core population would center around Wyoming, Montana, and Idaho. In the Southwestern DPS, the core population would center around Arizona and New Mexico. Id.
On Jan. 31, 2005 the United States District Court for the District of Oregon, in response to a lawsuit filed by various environmental organizations protesting the downlisting of the gray wolf, handed down a decision which vacated the April 1, 2003 Final Rule of the FWS on the grounds that the FWS’s decision to create the three DPSs and downlist two of them was “arbitrary and capricious” and not based upon the “best available science” as is required under the ESA. Defenders of Wildlife v. Dept. of the Interior , 354 F. Supp. 2d 1156, 1172 (D. Or. 2005).
In making its determination, the court identified the root of the problem with the final rule as the way the FWS determined that the gray wolf was in not in danger of extinction in a “significant portion of its range” in either the Western or the Eastern DPSs and therefore could be downlisted in both DPSs. Defenders of Wildlife v. Dept. of the Interior at 1163-1164 . The court found that the FWS determined that the gray wolf was not in danger of extinction in a significant portion of its range in either the Western or Eastern DPS because there was a core wolf population within each DPS which was not in danger of extinction (the Western Great Lakes population and the Northern Rocky Mountain population). Id. at 1167 . However, because there were “major geographic areas outside the Western Great Lakes and Northern Rockies where the wolf was once viable” but is no longer within each DPS, the court found that it was unreasonable for the FWS to determine that these areas were not significant portions of the wolf’s range and therefore unimportant in determining the status of each DPS. Id. at 1168 . The court found that the agency’s definition of “significant portion of its range” only included those areas that ensured the viability of the species within each DPS. Id. at 1169 . The court found that this definition was unreasonable because the ESA’s purpose was not simply to ensure the viability of a species as a whole or within a DPS, but rather to restore it to any location that had been a “significant portion of its range” in the past. Id. at 1169 . The court found that the FWS had violated the ESA and its own DPS policy because it had downlisted the wolf throughout 2 large land areas, yet had only applied the ESA downlisting factors (listed in 16 U.S.C. § 1533(a)(1)) to the core areas within each DPS. Id. at 1171.
The court found that the FWS had made such large DPSs simply so that it could downlist the wolf and eventually delist the wolf in vast areas where there were few or no wolves, and that this decision was not based upon the “best available science” or “sound biological principles” as required by the FWS’s DPS policy. Defenders of Wildlife v. Dept. of the Interior, 354 F. Supp. 2d at 1172.
Because of the court’s ruling, as of today, the status of the gray wolf under the ESA is the same as it was before the Final Rule promulgated on April 1, 2003 (i.e. gray wolves are endangered throughout the 48 states of the lower United States except in Minnesota where they are threatened, and except where they are classified into nonessential experimental populations.)
It is clear that at the time the FWS made the Final Rule concerning the three separate DPSs, its philosophy was that so long as there are three healthy populations of wolves in the lower United States, the wolf should not be considered endangered. This does seem to go against the spirit of the ESA which states that a species should be listed as endangered if it is eliminated from all or a “significant portion of its range.” On the other hand, many ranchers and farmers across the country were happy with the FWS’s determination because they would not have to worry about wolves coming to their area so long as they existed in the three core areas.
Perhaps the FWS was of the opinion that so long as wolves existed in some areas of the lower US, ie., was represented in few places, then there is no pressing reason why the FWS should attempt to put it in every area where it used to live. Indeed, if three populations are too few, but clearly restoring the wolf to all of its prior range is too much to ask, a legitimate question is – how much restoration is enough? Now that it has been determined that at least, three populations are not enough, perhaps the FWS has legitimate concerns about whether it will be required to spend money that it does not have in reintroducing new populations of wolves into places where they used to exist but do not any longer.
To wolves, this decision is good news. It means they once again receive the highest protection throughout the lower 48 states, which means their chances for increase and survival have gone up.
IV. State Roles in Protecting the Wolf
While states have historically possessed broad powers over wildlife within their borders, such powers are not constitutionally based and are therefore susceptible to preemption by the federal government when the federal government acts pursuant to its enumerated constitutional powers. Wyoming v. Dept. of the Interior, 360 F. Supp. 2d 1214, 1241 (D. Wyo. 2005) Congress had a valid constitutional mandate to create the ESA under the Commerce Clause of the U.S. Constitution, and therefore the FWS does not encroach on a state’s authority when it acts within a state pursuant to the ESA. Id. at 1240, 1244.
In Wyoming v. Dept. of the Interior , the State of Wyoming claimed that unregulated wolves were decimating its livestock and wild ungulate populations and that delay by the FWS in delisting the gray wolf infringed upon its sovereignty by not allowing Wyoming to manage the gray wolves within Wyoming. Id. at 1230, 1242. However, the court noted that Wyoming does not have sovereignty to regulate endangered and threatened species because of the Commerce Clause and the Supremacy Clause of the U.S. Constitution, and because of the ESA. Id. at 1230 n.18.
However, states can play important roles in protecting endangered, threatened, and recovered species. Sometimes, the FWS even requires that a state have a management plan for an endangered or threatened species before it will consider downlisting or delisting an endangered or threatened species. In 1987 the FWS revised its 1980 Recovery Plan to propose steps which would lead to the removal of gray wolves from the federal endangered and threatened species list. Wyoming v. Dept. of the Interior at 1218. The Plan recommended that once the gray wolf recovered, the recovery area should be split into three zones managed by the three states, Montana, Idaho, and Wyoming. In order to ensure that a former endangered or threatened species will not be exterminated once it leaves the protection of the ESA, having state wolf management plans in place is a prerequisite to delisting the gray wolf from the ESA. Id. at 1224.
In 2003 the FWS downlisted the gray wolf from endangered to threatened in the Western DPS, and requested that Idaho, Montana, and Wyoming each develop a wolf managment plan that would assure further success and advance the goals of the Revised Plan and make sure that the existence of a sustainable gray wolf population would be maintained. Wyoming v. Dept. of the Interior at 1220. Thus far, Idaho and Montana have come up with agency approved plans, whereas Wyoming has not. 70 FR 1286 (Jan. 6, 2005).
Wyoming has no affirmative duty to regulate gray wolves. Wyoming v. Dept. of the Interior , 360 F. Supp. at 1240 . However, the FWS is within its powers to perpetually preempt Wyoming from regulating gray wolves within its boundaries if Wyoming does not come up with a state management plan that the FWS finds will continue to protect the wolf, assuming that the agency is not under any other duty to delist the wolf. Id. at 1241 & n.22.
The FWS did not approve the Wyoming Plan because the Wyoming Plan designates the gray wolf as “predatory animal” in many areas, a designation which would not adequately allow for the monitoring of wolf numbers because it allows for “take” at any time without license. Id. at 1221, 1240 . FWS suggested to Wyoming that “trophy game” designation throughout the state would alleviate this concern, because trophy game animals have more stringent requirements for “take.” Id. at 1222 . The FWS would like Wyoming to commit to maintaining at least 15 packs by making wolves trophy game animals statewide, and by defining a “pack” as six or more wolves traveling together in winter. Id. at 1240 . Once Wyoming comes up with a plan that is approved by the FWS, the nonessential experimental population of wolves located in the greater Yellowstone management area is likely to be delisted under the ESA, and the wolves are likely to be entirely managed by state governments. However, if the state governments ever lessened their care of the wolves, by, for example, allowing too many wolves to be killed, it is likely that the FWS would step back in and relist the wolf.
V. Conclusion: What is Next for the Wolf?
The future of the gray wolf in the United States is uncertain. The wolf is clearly doing much better than it was 50 years ago; there are now several healthy wolf populations, and wolf numbers have gone from a few hundred to a few thousand. However, the District Court of Oregon has clearly stated that the existence of three core populations of wolves in the United States is not enough to fulfill the requirements of recovering a species under the Endangered Species Act. The court has stated that wolves present in less than 10 states is not enough when they used to exist in more than 30 states. But how much recovery is enough for the wolf to be considered no longer endangered under the ESA § 3(6)? How much recovery is enough so that the wolf is no longer “in danger of extinction throughout all or a significant portion of its range” is unknown, and will undoubtedly be a continuing issue of concern and litigation for environmental groups, landowners, and the courts. Perhaps more reintroduction efforts in states such as Washington and Oregon, where wolves used to be plentiful but no longer are, are in the wolf’s future.