A proposed settlement between wolf advocates and the federal government could open up public wolf hunting in Montana and Idaho, if Molloy supports it.
But he’s also considering an older case that considers how federal and state authorities could kill wolves while they’re still protected under the Endangered Species Act.
Complicating matters, the settlement has fractured both sides of the wolf delisting case, resulting in a courtroom Thursday with almost two dozen lawyers representing different factions.
Molloy split his afternoon into two parts. The first concerned the settlement offered by the federal government and 10 of the original 14 conservation groups that would return wolf management to Montana and Idaho state authority.
The second, longer portion got into the more complicated case about whether endangered wolves can be hunted under certain government exceptions.
The settlement discussion had three possible outcomes, called indicative rulings. Molloy could decide it had no value and ignore it, leaving the wolf delisting case before the 9th U.S. Circuit Court of Appeals. Or he could say he liked the settlement and indicate to the 9th Circuit that the matter should end right there.
The third option would be to say the settlement raised good questions that needed more courtroom time, and that Molloy would like to have the case back in his jurisdiction. Because the case has been officially moved to the 9th Circuit, Molloy can only request permission to get back in the driver’s seat.
Several of the attorneys in the room predicted both Molloy and the appellate judges would take the third option. That would both reduce the workload for the higher court and give Molloy a chance to explore how the settlement would work.
“The settlement holds great promise in removing the uncertainty in how gray wolves are protected,” U.S. Department of Justice attorney Michael Eitel told Molloy.
The agreement would turn off part of Molloy’s Aug. 5 ruling that returned wolves to Endangered Species Act protection. It would allow Montana and Idaho to manage and hunt wolves, but keep them under federal protection in Wyoming. It would also leave fledgling wolf populations in Washington, Oregon and Utah on the endangered species list until the U.S. Fish and Wildlife Service can come up with a regionwide delisting plan.
Michael Senatore represented the 10 environmental groups who supported the settlement. He added that a recent 10th U.S. Circuit Court of Appeals ruling supporting Wyoming’s wolf management plan could further help resolve the wolf question. The key, he said, was the settlement’s call for more scientific investigation and monitoring of Rocky Mountain wolves.
“At the end of this review process, we’ll have a new body of science that will provide the framework for wolf recovery,” he said.
The four “unsettling parties,” as attorney James Tutchton called them, were the Alliance for the Wild Rockies, Humane Society of the United States, Friends of the Clearwater and Western Watersheds Project.
“They (the settlement members) are asking you to return to force a rule you found illegal,” Tutchton told Molloy. “There’s been no change in law or fact. What is different now than the situation in August?”
“The science already exists – a viable wolf population is 2,000 to 5,000 animals and requires a certain amount of genetic connectivity,” he said. “What is clear from this settlement is hundreds of wolves would die, and whatever progress toward recovery will backslide.”
Molloy didn’t drop any hints what he thought about the settlement or either side’s argument. Instead, he moved to what could be called the 10-J part of the hearing.
Both sides were tangled by the fact there are now almost 1,600 wolves in the three-state area. Molloy circled several times around the conundrum that if wolves are well-dispersed and populous, they can’t be experimental, but if they’re not officially delisted by an agency, their experimental status hasn’t changed. And Molloy’s own August ruling returned the wolf to the endangered species list.
A bigger question concerning the settlement remains. If it is approved, the 10-J issue disappears because wolves are no longer threatened or endangered. Except in the matter of the “unsettled” environmental groups or several parties on the government side, such as Safari Club International and the National Rifle Association, who’ve filed briefs saying they still want their day before the 9th Circuit.
On Wednesday, a 9th Circuit official said that court would hold off for 30 days while Molloy decides what to do on the settlement question. Molloy promised to do that “as quickly as I can.”
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Photo of gray wolf courtesy of the National Park Service-Yellowstone National Park