WOLF LAW.

• Author: Honig, Jesse

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND OF THE ENDANGERED SPECIES ACT A. Listing B. Delisting C. Prohibitions D. Recovery II. HISTORY OF GRAY WOLVES IN THE NORTHERN ROCKY MOUNTAINS A. An Era of Federal Protection 1. Responding to Citizen Fears, Congress Revisits the ESA 2. Reintroducing Wolves to Their Former Redoubts 3. Wolves Go to Court 4. The Wolves Are (Perhaps Too) Fruitful, and Multiply 5. The Obama Administration Steps In, With Some More of the Same B. The States Step In III. AN ENDANGERED SPECIES LIKE NO OTHER A. Political Conservation B. Minimizing Human Conflict as Recovery Strategy C. Cooperative Federalism for a Species That Wanders 1. States 2. Courts 3. Congress D. Mechanical Recovery Methods IV. Rethinking Recovery Conclusion The wolf is known by many names Ho'nehe. Shontonga. Cheetxiilisee. Swjgmanitu thaijka. Omahkapi'si. Melemsfye. Makoyi. Bia isa. Hooxei. Ruv. Tha:yo:nih. Okwaho. Othahyu-ni. Ma'iingan. Skirl Neimen. Kwewu. Wahya. Himiin. Shin-ab. Tseena. The wolf (Canis lupus) is known by many names and for time immemorial has held an esteemed place in the cultures and lifeways of the original inhabitants of this continent. The wolf has guided and influenced indigenous people in a foundational way, literally since the beginning of time. The wolf brought knowledge and understanding of Mother Earth that is mirrored in the stars. The wolf has influenced indigenous societal structures through the pack, imparting the communal responsibility to sustain life. The wolf taught many to survive by the hunt and to live in a spiritual compact of reciprocity. The wolf provided guidance for environmental stewardship and ecological balance. The wolf is a teacher, a guardian, a clan guide--a relative. (1)

INTRODUCTION

Wolves have long inspired both intense violence and profound compassion. For decades in the United States, gray wolves have been managed, in one way or another, under our most ambitious species conservation law--the Endangered Species Act of 1973 (ESA). Since it was first listed as endangered, a species that was brought to the precipice of extinction has been restored in many parts of its historic range: the gray wolf's recovery is an endangered species success story. Nevertheless, the story of the gray wolf is much more convoluted than that of any other species that has gained protection under the ESA, its management a baroque anomaly. As the United States District Court, District of Columbia noted: "The gray wolf, like the bald eagle and the grizzly bear, has become a symbol of endangered species but, perhaps more than other such species, the gray wolf is also a lightning rod for controversy." (2) That controversy shows no signs of abating.

As the ecosystems that support human life on Earth continue to degrade and unravel, human communities face daunting reckonings. Humanity is fundamentally dependent on the services that functioning ecosystems provide. (3) And ecosystems need predators to function. Not only are wolves a keystone species within their ecosystem, but they also provide significant benefits to humans in the form of increasing carbon sequestration in ecosystems and other economic benefits. (4) With an exponentially growing human population, we must find ways to sustain and restore the predators essential for ecosystems that support human well-being. Wolf management as implemented in the U.S. presents lessons for how not to promote the health of human and nonhuman communities. But if the United States can get wolf law right, if we can figure out how to manage our most iconic and most reviled, imperiled species, we can apply those lessons nationally and globally to equally imperiled species and ecosystems.

Regional subspecies of the gray wolf (Canis lupis) were among the first species listed as endangered species under the 1973 ESA and its predecessor conservation statutes. (5) In fact, the Northern Rocky Mountain wolf, a regional subspecies of the gray wolf, was originally listed as an endangered species under the Endangered Species Conservation Act of 1969. (6) While the nomenclature surrounding wolf populations has changed over time, this Article focuses on the gray wolf populations that are part of what has become known as the Northern Rocky Mountain population. This includes wolves in Montana, Idaho, Oregon, Washington, and Wyoming.

The United States Fish and Wildlife Service's (the "Service") approach to implementing the ESA has not been static, but rather has evolved over time. (7) Previous scholars have analyzed specific moments and periods in the story of the gray wolf. In this Article, we draw on this existing body of literature to show how what has emerged as "wolf law" is unique, odd, and often counterproductive--at least if the goal is to ensure the species' survival and revitalize damaged ecosystems upon which healthy human communities depend. The controversies surrounding gray wolves have led to bizarre and, in some cases, illegal techniques for managing the species. In managing gray wolves, the Service has not only explored new interpretations of the ESA's requirements, but has developed and applied a unique, and not always successful or helpful approach, to conservation and recovery. This Article identifies some of the unique characteristics of wolf law, analyzes how and why it has developed in this strange way, and proposes some more sensible ways for healthy human communities to coexist with healthy wolf communities.

First, politics, as much as biology, has driven wolf conservation. Under the ESA, the Service has managed gray wolves in ways that are politically expedient, but conflict with biological realities. The countless legal battles fought over the gray wolf illustrate the various ways in which the Service has pushed against the boundaries of the ESA's mandates to rely on scientific data rather than politics. The gray wolf is certainly not alone in this regard--few agency decisions are truly free from political influence. However, the extent to which politics has driven the development of wolf law is an outlier among endangered and threatened species.

Second, the Service has developed "socially sound" recovery methods that focus on potential impacts on humans, as opposed to impacts on species survival. By focusing on human animosity towards wolves, the Service has shaped much of the wolf's recovery around reducing these tensions. Consequently, the system that emerged permits killing large numbers of wolves, contradicting the mandates of the ESA.

Third, unlike many other environmental laws that emerged from the 1970s, the ESA does not usually rely on cooperation between state and federal agencies--cooperative federalism. (8) For most species, the ESA operates at the federal level with states playing a subordinate role, if any role at all. This has not been the case for the gray wolf. What has emerged from decades of legal battles, agency rules, state management, and congressional intervention is a sort of four-legged cooperative federalism--between states, federal agencies, Congress, and courts--yielding unusual and adversarial results.

Finally, the Service manipulates wolf populations in a mechanical manner--moving individual wolves around like chess-pieces on the landscape, transplanting populations hither and yon, and allowing widespread slaughter of individuals or packs that become politically inexpedient. In this Article, we provide a timeline of the Service's byzantine machinations and analyze how and why federal and state governments, driven by countervailing political forces, have pursued such unorthodox maneuvers.

Part I of this Article reviews the fundamental aspects of the ESA-- in our view the most radical environmental law ever passed in the U.S.--mandating the treatment of non-human species as valuable in their own right, and requiring their protection from extinction, no matter the human cost. In Part II, we trace the history of Northern Rocky Mountain gray wolves and highlight their uniqueness among endangered species. This story illustrates the tensions between the clear statutory mandates of the ESA and the political pressures shaping species conservation around human wants. In Part III, we outline some of the themes that set "wolf law" apart from the pack. Finally, in Part IV, we suggest a path forward to manage wolves in a sensible manner that better fulfills the needs of the species--and thus, inevitably, the needs of our own species--as the ESA requires.

1. Background of the Endangered Species Act

   Congress enacted the ESA in 1973 to conserve the planet's plant and animal species in response to the growing threat of mass extinction. (9) In doing so, Congress declared the importance of preserving species and "provide[d] a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered and threatened species," (10) "whatever the cost." (11) The United States Supreme Court has since recognized the ESA as the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation." (12)

   For such an ambitious and far-reaching statute, the ESA is relatively concise and straightforward--on paper, at least. The core ESA programs are set out to support the goal of preserving species and creating a mechanism for preserving and recovering species facing extinction. The ESA prescribes two separate levels of protections for endangered and threatened species. "Endangered species" are "any species which is in danger of extinction throughout all or a significant portion of its range..." and "threatened species" are "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." (13)

   Under the ESA, conserving a species means "to use ... all methods and procedures which are necessary to bring any endangered species or...