Friday, August 12, 2011

More questions follow Wyoming wolf deal

CHEYENNE, Wyo. — Last week’s announcement of an agreement between the U.S. Fish and Wildlife Service and the state of Wyoming to remove the state’s roughly 340 wolves from the endangered species list was a landmark step in resolving a yearslong fight.
But, as all sides have made clear, there’s still a long way to go — and a lot of hurdles to cross — before the deal goes into effect.
The agreement, announced by Gov. Matt Mead and Interior Secretary Ken Salazar, now has to be approved by Fish and Wildlife, as well as state legislators and wildlife officials.
And it’s hard to predict whether all of that will happen, several wildlife and legal scholars say, because Wyoming’s now entering uncharted territory.
“Everything about it is unusual,” said John Nagle, an environmental law professor at the University of Notre Dame. “The fact that you have such ongoing involvement between the state, the federal agencies, Congress and the courts — there aren’t many times, certainly in wildlife management, when all four are so actively involved, one responding to the other.”
The plan
The agreement lays out a number of goals and minimum standards for Wyoming’s wolf population, which is centered in the northwest part of the state. But many specifics still need to be worked out.
Under the so-called dual-status plan, wolves in the northwest part of the state would be protected as trophy game, meaning they could only be hunted with a license.
The plan also establishes a flex zone covering northern Sublette and Lincoln counties, as well as southern Teton County, in which wolves would be protected only from Oct. 15 until the end of the following February so they can connect with other wolves in Idaho.
In the rest of the state, wolves would be considered predators and could be killed on sight, as long as the death is reported to the state afterward.
Under the plan, Wyoming would be required to maintain 100 wolves, including 10 breeding pairs, outside Yellowstone National Park.
The 60 or so wolves in Yellowstone and Grand Teton national parks — which includes five to six breeding pairs — would be delisted but wouldn’t be under state control.
The agreement states that Wyoming will have a hunting season for wolves inside the trophy game area. But state officials have yet to work out any details about how long the hunting season would last or how it would be set up, Game and Fish spokesman Eric Keszler said.
Seeking approval
There are also no guarantees that the plan will survive the approval process by both Fish and Wildlife and the state of Wyoming.
The first step for Fish and Wildlife is to publish a proposed rule in the Federal Register — a goal Salazar and Mead want accomplished by Oct. 1.
Then, Fish and Wildlife biologists will likely spend several months writing an analysis of the plan using the same science-based criteria for adding a species to the endangered species list: whether, under the agreement, Wyoming wolves face threats to their existence.
The analysis will recommend whether Wyoming wolves should be delisted and the agreement should go into effect.
There are no guarantees that the analysis will recommend the wolf deal should be approved, said Holly Doremus, a law professor at the University of California-Berkeley.
For one thing, she said, Fish and Wildlife biologists might be concerned whether Wyoming can accurately keep tabs on the state’s wolf population, given that wolves could be shot on sight without a license in part of the state.
“They will have to do that process carefully,” Doremus said. “They’ll have to make sure they dot the procedural I’s and cross the T’s, because for sure they’re going to get sued.”
Meanwhile, on Wyoming’s side, the state Legislature and the Wyoming Game and Fish Commission have to OK changes to the state’s wolf management plan.
The Game and Fish Commission will get first crack at the issue, considering changes to the management plan either during its next scheduled meeting Sept. 7-8 in Casper or during a special meeting called later that month, Keszler said.
After that, the Legislature would have to alter Wyoming’s wolf laws to bring them into line with the agreement — either during the 2012 budget session, which starts in February, or before then if Mead calls a special session of the Legislature.
Mead hasn’t yet decided whether to hold a special session, said spokesman Renny MacKay, nor does he feel rushed to decide.
Several legislators have voiced optimism that the deal will be passed, especially as many local landowners and stakeholder groups — such as agricultural producers — are supportive of it.
No-litigation clause
Perhaps the most important — and, possibly, the trickiest — part of the wolf deal is getting Congress to pass legislation preventing any legal challenges to the agreement.
Mead and Wyoming’s congressional delegation have pushed for such a no-litigation clause, saying that without it advocacy groups would inevitably start a years-long court battle to void the deal.
Last month, U.S. Rep. Cynthia Lummis, R-Wyo., successfully inserted a no-litigation rider into a 2012 congressional appropriations bill, as well as a clause that would immediately put Wyoming wolves under state control. It’s similar to a budget rider Congress passed in April preventing court action against the delisting of wolves in in Montana, Idaho and parts of Washington, Oregon and Utah.
Lummis’ measure survived a legislative challenge recently and is still being considered on the House floor.
Congressional observers expect Lummis’ wolf rider will pass the Republican-controlled House of Representatives. However, they’re uncertain how the proposal will fare in the Democratic-controlled Senate.
Congress has the unquestioned power under Article 3 of the U.S. Constitution to prevent legal action against any federal law or rule, legal scholars say. And Congress has used its so-called “jurisdiction-stripping” power in the past to block lawsuits against laws dealing with everything from hazardous waste cleanup to illegal immigration.
But Congress doesn’t pass litigation bans very often, Nagle said.
And it’s not completely clear how wide-ranging Lummis’ no-litigation clause will be, should it pass.
Several legal scholars said they weren’t sure whether Lummis’ no-litigation clause would prevent the wolf deal from being challenged in Wyoming state courts, as opposed to federal courts.
“All of this stuff is really new ground in terms of endangered species management,” Nagle said.
Indeed, until April, Congress had never passed legislation to remove a species from the endangered species list.
On Wednesday, U.S. District Judge Donald Molloy reluctantly upheld the budget rider passed by Congress in April delisting wolves in five states, saying past rulings established that lawmakers weren’t violating the separation of powers between the legislative and judicial branches.
Nagle said he wasn’t exactly sure why Congress, after 30 years of turning down requests to remove various animals from the endangered species list, voted to delist wolves this year.
He suspected, though, that wolves somehow are able to bring out strong emotions in people in ways that other animals can’t bring out.
“The kind of feelings and response to wolves on all sides [of the issue],” he said, “and the passion with which people hold those positions, have kind of guaranteed that it’s going to be a knock-down, drag-out fight.”