The wolves may have won the battle, but not the war: how the West was won under the Northern Rocky Mountain Wolf Recovery Plan.

• Author: Li, Jennifer

1. INTRODUCTION

   In February 1999, a female gray wolf known as B-45(1) followed the Snake River from Idaho and crossed into eastern Oregon.(2) B-45 holds the distinction of being the first wild wolf spotted in Oregon since 1963.(3) While the historical range of the gray wolf (Canis lupus) stretched throughout most of the coterminous United States and into Canada, its current range is much more limited, because the gray wolf has largely been e eliminated from the western United States.(4) Since 1978, the gray wolf has been listed as an endangered species throughout the lower forty-eight states, except for Minnesota, where it is listed as threatened.(5) Federal wildlife officials returned B-45 to Idaho the following month, because they feared she would be unable to find a mate in Oregon.(6) Her brief stay, however, heralds the arrival of complicated issues for the western states, few of which have wolf management programs. States will be unprepared to manage wolf populations when, given the current success of the reintroduction program, the wolves repopulate the Pacific Northwest and are delisted.(7)

   B-45 is part of a recovery program authorized under the Endangered Species Act (ESA or Act),(8) which charges the federal government to "take such steps as may be appropriate" to conserve and protect endangered species to the point where the species can be removed from the endangered or threatened species lists,(9) Section 10(j) of the Act authorizes the United States Fish and Wildlife Service (FWS) in the Department of the Interior to create "experimental populations" of endangered or threatened species as a conservation tool.(10) These populations must be released into uninhabited portions of the species' historical range and are subject to less strict prohibitions than naturally occurring populations of endangered or threatened species.(11)

   The Fish and Wildlife Service created the Northern Rocky Mountain Wolf Recovery Plan (NRMWRP) to reintroduce gray wolves into Yellowstone National Park and central Idaho, with the expectation that these wolves will eventually repopulate the West.(12) Eight years in the making, the plan was finally implemented in the winter of 1994-1995, when Canadian gray wolves were captured and released into two areas: Yellowstone National Park and central Idaho.(13) The program is believed to be highly successful, resulting in a population of about 170 adult wolves in each area, and mating between wolf packs indicates that the gray wolf is closer to becoming one integrated population.(14)

   To establish an experimental population under section 10(j), the population must be "wholly separate geographically" from any already existing wolves within the experimental area.(15) Two recent court decisions examined this requirement in connection with the NRMWRP. Both the Ninth and Tenth Circuits upheld the FWS's regulations, which interpret the "wholly separate geographically" language to mean that the experimental population must be wholly separate geographically from any already existing populations of gray wolves, rather than wholly separate from individual gray wolves. The Tenth Circuit upheld the validity of the FWS wolf reintroduction regulations, reversing the district court's order to remove the experimental population of wolves from Yellowstone and central Idaho.(16) Meanwhile in United States v. McKittrick, the Ninth Circuit interpreted the same statutory language from the section 10(j) experimental population provision and regulations.(17) It determined that the "wholly separate geographically" language applied to populations of gray wolves, rather than individuals and rejected the argument that sightings of lone wolves constituted a population,(18)

   McKittrick argued that the Canadian wolves transported to Yellowstone to create the experimental population were neither endangered nor threatened because wolves in Canada are not endangered. The Ninth Circuit concluded that the current location of a particular gray wolf determines whether or not it is considered part of an experimental population, not where the wolf originated.(19) Wolves found within the experimental population boundaries are considered experimental, while wolves found outside the boundaries are considered endangered.(20) The significance of experimental versus endangered status is that an experimental wolf is not subject to the strict prohibitions that an endangered wolf is subject to under the ESA.(21)

   To fulfill the goals of both the ESA and the wolf recovery plan, gray wolves should have increased protection under the ESA. Currently, experimental populations can be designated as either essential or nonessential.(22) FWS has designated all experimental populations reintroduced thus far as nonessential.(23) Nonessential experimental populations within national parks or refuges only have threatened stares for some provisions of the ESA.(24) But even within the designated experimental areas, experimental wolves are subject to very limited protections.(25) The current FWS regulations, as upheld by the Ninth Circuit, may not recognize that experimental wolf populations can mix with naturally occurring populations or that naturally occurring wolves have already migrated from Canada into northwestern Montana and may migrate into central Idaho.(26)

   This Chapter examines the status of the experimental gray wolf populations in Yellowstone National Park, central Idaho, and the rest of the western United States, as interpreted by FWS and upheld by the Ninth Circuit in United States v. McKittrick. Part II focuses on the history of the gray wolf in the United States, specifically the events and attitudes in the West. Part III addresses the legislative intent behind section 10(j), which established the experimental population provision, reads section 10(j) in the context of the entire ESA, and analyzes how the experimental population provision and its corresponding regulations operate. Part IV outlines the development of the Northern Rocky Mountain Wolf Recovery Plan from its conception and details fundamental components of the NRMWRP. Part V describes the facts behind United States v. McKittrick and the Ninth Circuit's opinion. Finally, Part VI evaluates the NRMWRP and its current status under the ESA in the context of McKittrick. This part critically considers the holding in McKittrick and the statutory scheme for experimental populations. It argues that current protections for experimental populations may be insufficient to fulfill the long-term goals of the ESA and concludes that the regulations, as interpreted by FWS, may be inconsistent with the underlying goals of the Endangered Species Act.

2. LOOKING BACK AT THE GRAY WOLF

   Taxonomists identified over twenty subspecies of gray wolves that once ranged throughout the Northern Hemisphere.(27) These wolves spanned from around present-day Mexico City to northern Greenland,(28) and biologists estimate that North America at one time supported anywhere between 140,000 to 850,000 wolves.(29) However, extensive private and governmental predator control programs have reduced the gray wolf's present range within the lower forty-eight states by almost ninety-nine percent.(30) The largest current population outside of the coterminous United States exists in Alaska and Canada.(31)

   The original wolves of Yellowstone National Park and Idaho are believed to have been of the subspecies Canis lupus irremotus.(32) As scientists believe the subspecies irremotus is extinct,(33) the Yellowstone and Idaho reintroduction programs are aimed at the entire species, Canis lupus, also called the Northern Rocky Mountain Wolf.(34) This reflects a modern opinion by scientists that many of the biological differences between the original twenty-plus subspecies are relatively immaterial.(35)

   The gray wows history in the United States is a tumultuous one. Early European immigrants brought folklore and superstitions which were fashioned into a deep-seated prejudice against wolves.(36) Medieval tales of wolves feeding on children, solitary travelers, and corpses from wars and plagues were common throughout France, Spain, and Russia.(37) This background led to an immense fear of and aversion to anything wolf-like, and people suspected of being werewolves were often executed.(38)

   1. Americans and Wolves

      Rather than dissipating when wolves were largely extirpated from most parts of Europe by 1700,(39) these legends remained with Europeans, ingrained into their collective minds when they immigrated to the Americas.(40) In reality, the large majority of immigrants to the New World had never even seen a wolf.(41) To some of the early immigrants, such as the Puritans, the wolf symbolized a threat to one's spiritual and physical being.(42) However, one main reason for this dislike was economically based. Wild game and domestic livestock were crucial to survival in the New World, and by preying on those species, wolves threatened the colonists' chances of survival.(43)

      Western frontiersmen faced similar difficulties and fears, although to a lesser extent.(44) Initially, there was scarcely any competition for prey between the wolves and the western settlers because of the abundance of wild ungulates, especially buffalo.(45) Nevertheless, during the first half of the nineteenth century, economic incentives for hunting wolves arose. Wolf pelts became popular and valuable.(46) In the 1830s, a wolf pelt was valued at one dollar, two decades later, the value had doubled.(47)

      Hunters soon discovered a connection between buffalo and wolves. Once a buffalo had been skinned, wolves converged to feed on the carcasses.(48) Because hunters could easily acquire strychnine, it was an effortless and inexpensive task to apply the poison to the buffalo carcasses and return later to collect the wolf pelts.(49) This practice, called "wolfing," continued until the end of commercial buffalo hunting around the early 1880s and decimated the...