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Throwing Canis Lupus to the wolves: United States v. McKittrick and the existence of the Yellowstone and Central Idaho experimental wolf populations under a flawed provision of the...

Brigham Young University Law Review, 2000 by Dinger, Daniel R

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The 1973 Act also allowed for reintroduction of a listed species into portions of its historic range then unoccupied by naturally occurring members of the species. Although this provision was a victory for the decimated wolf populations, its power was limited, and, as a result, early reintroduction efforts failed.53 Concerned that these efforts had been largely unsuccessful, Congress expanded the power of government agencies to reintroduce various animal species to their historic habitats in its 1982 amendments to the ESA, which "made significant changes" to the 1973 Act.54 These changes included the addition of section 10(j), which provides for the designation of specific animals as "experimental" in an attempt to give the Secretary of Interior greater flexibility in working towards the conservation of endangered species.55 This provision, which also allows for the reintroduction of listed species into their historic habitats, is at the heart of the controversy in current wolf reintroduction litigation. 56

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1. Experimental populations under section IOU) of the 1982 amended ESA

Under the amended ESA, a listed species such as the northern Rocky Mountain gray wolf that is "reintroduced outside of its current range, but within its historic range, may be designated, at the discretion of the Secretary of the Interior . . . , as 'experimental.' "57 The rules regarding these designations are set forth in section 10(j).

a. Proper treatment of experimental populations. The amended ESA requires that, unless special enumerated exceptions apply, all experimental populations be treated as threatened species, and not as endangered species.58 Because the experimental populations are considered threatened as opposed to endangered, the rules regarding their protection and proliferation are not as strict as they otherwise would be. As such, the Fish and Wildlife Service, the administrative agency primarily responsible for implementing reintroduction efforts, has greater flexibility and discretion in managing and maintaining the reintroduced species and in fashioning rules and laws regarding them than it would have if the animals were given full ESA protection as endangered species.59 Thus, the FWS can, for example, establish a pack of protected wolves in a particular area but still allow ranchers to kill any of those experimental wolves caught in the act of attacking their livestock. If the experimental wolves were given full ESA protection as an endangered species, such killing would be illegal and would result in a criminal prosecution of the ranchers, effectively leaving them helpless to defend their livestock.60 The FWS also has more discretion in relocating troublesome experimental wolves to remote areas when they clash with humans than it would have if naturally occurring wolves were the cause of the trouble.61

b. Essential and nonessential experimental designations. Under the 1982 Amendments, the Secretary of the Interior must determine whether experimental populations are "essential to the continued existence of an endangered species or a threatened species."62 This designation also affects the level of protection afforded the experimental population. Those populations designated as "essential" are given full ESA protection at all times (even though they are listed as threatened species), meaning killing a member of the species for any reason, even if they are caught in the act of killing livestock, is unlawful. Those designated as "nonessential" only receive such protection within the borders of any area of the National Wildlife Refuge System or the National Park System. Under this complex system of rules, for example, an experimental wolf population that is deemed nonessential to the continued survival of the species as a whole and is introduced in the northern Rocky Mountain area receives full ESA protection while inside the borders of Yellowstone National Park but only receives protection as a threatened species outside of the Park. That is, when they are outside the Park, ranchers can kill wolves that are caught in the act of attacking livestock, and wildlife officials have more discretion and leeway in managing their existence.63 Such is the case with the wolves at issue in McKittrick; they were designated as nonessential experimental wolves by the Secretary of Interior prior to their release into the wilds of Yellowstone in 1995.

Throwing Canis Lupus to the wolves: United States v. McKittrick and the existence of the Yellowstone and Central Idaho experimental wolf populations under a flawed provision of the...

Brigham Young University Law Review, 2000 by Dinger, Daniel R

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