Recovery of the Gray Wolf under the ESA

Overview of the Recovery of the Gray Wolf under the ESA
Catherine J. Archibald (2005)

The gray wolf is a member of the canine family.  It lives throughout North America and consumes a varied diet of mid-sized animals such as deer.  Like humans, gray wolves are amazingly adaptable and can live in a variety of climates and conditions.  They used to live in most of the lower 48 states of the United States, but, by the early 1900s, the gray wolf had almost entirely disappeared from the lower 48 states.  Because humans who settled the United States brought with them an intense hatred and fear of wolves, and because wolves can upset farmers by eating their livestock, human activity such as poisoning, trapping, and shooting wolves led to the almost complete extinction of the wolf in the United States.  ( Click here  for more on the biological and natural history of the gray wolf). 

Things began to get better for the gray wolf beginning in 1973 with the passage of the Endangered Species Act (ESA).  The ESA requires the Federal government to help endangered and threatened species recover from their low numbers. 

By 1978 the United States Fish and Wildlife Service (FWS) had listed 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.  Within the last decade, with the help of the strict rules and successful reintroduction efforts wolf prospects and numbers have greatly increased, and there are now over 2000 wolves in the lower 48 states of the United States. 

In 1982 Congress amended the ESA to include Section 10(j), which allows the FWS to reintroduce a threatened or endangered species.  The reintroduced populations are then called experimental populations.  Each member of an experimental population is 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.  Wolves which are part of an experimental population therefore receive less protection than endangered species status provides.  ( Click here to read more on experimental populations under the ESA).

Congress added section 10(j) to the ESA in order to lessen anger against reintroduction efforts.  For example, a livestock owner is probably happier with wolves reintroduced into her area if she knows that she is allowed to kill a wolf seen attacking her animals.  Even if this measure did help to lessen ranchers’ opposition, most ranchers and farmers are still against the reintroduction efforts because wolves sometimes kill their farm animals.

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. 

In 1995 and 1996, the FWS brought fourteen western Canadian gray wolves into Yellowstone Park, and seventeen more a year later.  This population has been successful, growing to over 600 wolves.  The rules for these experimental populations of wolves 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. 

Mexican gray wolves are also being introduced in New Mexico and Arizona.  The Mexican gray wolf program involves managed breeding of captive animals.  As of August 2002, Mexican gray wolf numbers had increased to 247 animals.  Releases continue every year in order to reach a goal of 100 wild animals.  These wolves can also legally be killed by ranchers on private land if they are seen attacking livestock. 

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 experimental populations of wolves to their new home.  For example, in United States v. McKittrick , 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 disagreed because it said that lone wolves are not a population.

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: should they be listed as endangered or threatened or should they be 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.

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.  “Take” is defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or to attempt to engage in any such conduct.” 

Whereas it is forbidden to “take” endangered species, section 4(d) of the ESA allows the FWS to make rules that allow for the take of threatened species. However, the rules must have as their purpose “the conservation” of the species.  Case in point is where a federal 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 helping wolves or “for the conservation of the wolf.”  ( Click here for more on experimental populations of gray wolves under the ESA). 

There is disagreement over how to best help the wolf survive.  Wolf populations of the  Yellowstone and Central Idaho experimental populations have done extremely well, even though some “take” of wolves has been and is allowed.  Some people believe that allowing some “take” helps 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.  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. 

The FWS has the job of determining whether a species is endangered or threatened.  The FWS may designate a Distinct Population Segment (DPS) as endangered of threatened.  A DPS is a population that is different and separate from the rest of the species’ population in some way.  For example a type of fish living in one lake could be listed as a separate DPS from the same type of fish living in a different lake.  When the FWS makes a DPS, it must explain why it has done so, using “sound biological principles.”  Consequently, because a species may be broken up into different DPSs the wolf could be listed as endangered in one area, while being classified differently (as either threatened or not listed) in another area.   This allows the FWS to protect populations of species if they are endangered in one area, but not in another.  At the moment there are no DPSs for the wolf in the United States, but the FWS may decide to break up the wolf into DPSs later on.  (Click here for more on the FWS's managment of distinct population segments of the gray wolf).

Under the ESA, the federal government can decide to make rules which affect wildlife within a state’s boundaries.  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 the species.  The FWS has issued a plan that recommends that once the gray wolf has recovered in the Yellowstone and Central Idaho region, 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, the FWS stated that having state wolf management plans that it approves in place is a necessary before it will delist the gray wolf in those areas. 

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.  But, how much wolf recovery is enough?  The answer to this question 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.

Controversy over the fate of the wolf is alive and well.  Where do you stand on the issues?  Do you agree with many ranchers and farmers who think that the best place for wolves is in zoos, because out in the wild they cause too much disruption when they kill farm animals?  Do you agree with many environmentalists who think that putting the wolf back where it once roamed is good for ecosystem and human health because as a top predator the wolf controls the numbers of grazers and herd animals such as elk and deer, and people then have the chance to see a wolf and hear its howl in the wild?