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

2. The halting of the Yellowstone and central Idaho reintroduction efforts

Efforts toward gray wolf reintroduction into Yellowstone and central Idaho, which for two years had been progressing at a rate satisfactory to the Department of Interior, took a major blow in December of 1997, when United States District Judge William F. Downes ruled in Wyoming Farm Bureau Federation v. Babbitt.78-a consolidation of three separate lawsuits each directly challenging the legality of the experimental wolf populations in Yellowstone National Park and central Idaho-that wolf reintroduction efforts in Yellowstone and central Idaho were unlawful and in violation of section 10(j) of the amended ESA.79 Based on his reading of the legislative history, Judge Downes ruled: ( 1 ) because the reintroduced experimental populations overlapped geographically with naturally occurring wolf populations-wolves having been confirmed to exist within the geographic boundaries of the experimental areas in Yellowstone National Park and central Idaho,80-reintroduction efforts violated section 10(j); (2) the treatment that the FWS had thus far given to the reintroduced wolves was improper; and ( 3 ) the reintroduced wolves and their offspring would need to be removed from the experimental areas.81 Since wildlife officials were unable to find a zoo or animal park willing to take the wolves, and because Canada-the land of their origin-was unwilling to take them back; the Judge's order was effectively a death sentence for the reintroduced wolf populations.82

3. A pro-wolf reversal by the Tenth Circuit

The defendants in Wyoming appealed the district court's decision to the Tenth Circuit Court of Appeals and the Wyoming district court judge's order was stayed pending the outcome of that appeal.83 On January 13, 2000, the Tenth Circuit Court of Appeals reversed the district court's decision in Wyoming.84 In reversing the district court, the Tenth Circuit held: ( 1 ) there was no overlap between the experimental and naturally occurring wolf populations and thus no violation of the "wholly separate geographically" requirement of section 10(j); (2) the treatment that the FWS had thus far given to the reintroduced wolves was proper; and (3) the reintroduced wolves and their offspring should not be removed from the experimental areas.85

III. UNITED STATES V. McKITTRICK

In 1998, just a few months after the publication of the district court's Wyoming decision, and approximately two years before the Tenth Circuit reversal of that decision, the issue of wolf reintroduction was brought before the Ninth Circuit Court of Appeals. In United States v. McKittrick,86 the Ninth Circuit reached a conclusion opposite to that reached by the district court in Wyoming, ruling that the wolf reintroduction efforts in Yellowstone National Park and central Idaho were legal and that there had been no violation of the "wholly separate geographically" requirement of section 10(j) of the amended ESA.87 Indirectly, and perhaps most importantly, the court also held that the wolves constituting the experimental populations should not be removed from Yellowstone or central Idaho, but should be allowed to remain.88