26 ELR 10018 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Experimenting With Experimental Populations

Editors' Summary: ESA § 10(j), the Act's experimental population provision, allows the U.S. Fish and Wildlife Service (FWS) to release populations of threatened and endangered species into their historic range without complying with many of the Act's restrictions. This Article examines the statutory, regulatory, and judicial aspects of the experimental population program. It begins by examining the background for Congress' enactment of § 10(j). It then analyzes § 10(j) and the regulations that the FWS issued for implementing § 10(j). It discusses the process for issuing special experimental population rules for particular species and examines each of the special rules that the FWS has issued for experimental populations. The Article next addresses the litigation that has arisen over the Yellowstone National Park and central Idaho gray wolf experimental populations and the litigation that is expected over the Mexican wolf population. Finally, the Article analyzes the consequences of designating experimental populations and suggests species that may be next in line for designation.

Mimi Wolok is a staff attorney with the Center for Wildlife Law, University of New Mexico School of Law, where she coauthored the draft environmental impact statement for the Mexican wolf reintroduction. She is a Certified Associate Wildlife Biologist, with a B.S. in Wildlife Ecology from the University of Florida and a J.D. from the University of New Mexico.

[26 ELR 10018]

Rarely in the evolution of the Endangered Species Act (ESA)¹ have Congress, the U.S. Fish and Wildlife Service (FWS), environmentalists, states, and resource users worked so closely for a common goal as when Congress added § 10(j)² to the ESA in 1982. Section 10(j), the ESA's experimental population provision, allows the FWS to bypass the restrictions placed on federal agencies and others by reestablishing populations of threatened and endangered species in their historic range. Congress designed § 10(j) to give the FWS more flexibility in managing such populations.³ The dual purposes of § 10(j) are to eliminate the § 7 consultation requirement as an impediment to the release of captive-bred populations⁴ and to "authorize the discretionary removal of section nine taking prohibitions" for experimental populations.⁵

The FWS has drafted experimental population rules for 11 species, and it has implemented rules for 9 of these species.⁶ Of these 9 species, only the red wolf and the gray wolf have established viable experimental populations.

This Article first discusses the history of the § 10(j) enactment and the statutory scheme for creating experimental populations of listed species. It then describes the FWS regulations implementing the experimental population amendment, reviews the general process by which the FWS develops special experimental population rules, and evaluates each of the 11 special rules. The Article then discusses the litigation over the reestablishment of the gray wolf to Yellowstone National Park and central Idaho, as well as the anticipated litigation over the reestablishment of Mexican wolves to the southwestern United States. The Article concludes that § 10(j) was a laudable attempt by Congress to address the social and political conflicts inherent in releasing protected wildlife; however, the program has met with mixed success biologically, and the FWS must directly address some tough issues before the program can be called a political success.

Background

Before Congress enacted § 10(j), the federal government's authority to reestablish threatened or endangered species to their native range was unclear. The ESA was silent as to the power of the FWS to enforce the provisions of the ESA [26 ELR 10019] for these species on federal, state, and private lands. The FWS claimed that it already had the authority to release listed species into areas outside their current range through the U.S. Department of the Interior's (DOI's) broad power to conserve the species.⁷ Also, the ESA mandated the FWS to carry out recovery plans for each listed species,⁸ and several of the FWS' recovery plans required repatriation of previously extirpated populations. Opponents of reestablishing listed species, such as states, resource users, and private-property owners, may have countered that Congress had not explicitly granted the FWS this authority; therefore, it did not exist. At the same time, private landowners and local governments voiced their resistance to the release of fully protected species into their backyards. They feared that once these species became established, the FWS would put restrictions on land uses.

Congress proposed § 10(j) to fill this gap in the ESA, expressly giving the FWS a mechanism to use captive-bred or naturally occurring populations of listed species to establish experimental populations. The amendment had the strong support of the DOI, state fish and wildlife agencies, and environmental groups.⁹ The intent was to give the FWS management flexibility to recover threatened and endangered species by reestablishing them in native habitat outside their current range to achievetheir long-term survival. Congress wanted to encourage the recovery of species through population reestablishment with the cooperation of, not despite, state and local groups. In fact, Congress said that "where experimental populations are released on, or near, private land, the landowners must be fully apprised of the release …."¹⁰ The regulations issued for each experimental population "should be viewed as an agreement among the Federal agencies, the state fish and wildlife agencies and any landowners involved."¹¹

Congress also stressed that the FWS must address the unique situations presented by each experimental population through the formulation of special rules.¹² Congress anticipated that accidental or incidental taking of individuals of experimental populations may occur during lawful activities such as fishing, and that "the regulations could allow for the directed taking of experimental populations" to conserve the species as a whole.¹³ The House report on the § 10(j) amendment stated that the regulations could allow, for example, the taking of red wolves when livestock depredation occurred or when the public continued its vociferous objections to releasing the top predator.¹⁴ The FWS has carried out this taking directive frequently. A fisherman will not be prosecuted for accidentally hooking a yellowfin madtom,¹⁵ Colorado squawfish, or woundfin¹⁶ within the experimental population area. A driver will not be prosecuted for accidentally running over a red wolf.¹⁷ And ranchers can shoot a member of the Yellowstone experimental population of gray wolves if they catch the wolf in the process of killing livestock and if they report the incident promptly.¹⁸

The Experimental Population Scheme

An experimental population is a wildlife or plant population, including offspring of that population, that the DOI has designated as experimental through the informal rulemaking process.¹⁹ Section 10(j) applies to endangered and threatened species, including plants and invertebrates, that are captive bred or that occur naturally.²⁰ For example, the experimental population of black-footed ferrets that was released into southwestern South Dakota originated wholly from a captive population,²¹ while the FWS translocated a wild southern sea otter population from its existing range to a relatively isolated area in the southern part of its historic range.²²

The DOI must meet two conditions before designating a population as experimental. First, the release of the experimental population must further the conservation of the threatened or endangered species.²³ Second, the DOI can designate a particular population "only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species."²⁴

The DOI has a good deal of discretion in managing experimental populations. According to § 10(j), a population that the DOI has designated through regulation as experimental is treated as threatened, regardless of whether the species as a whole is listed as threatened or endangered.²⁵ The DOI has more management flexibility over threatened species than over endangered species. Section 4 of the ESA provides the DOI with broad authority over threatened species. Specifically, the DOI "shall issue such regulations as [it] deems necessary and advisable to provide for the conservation of [threatened] species."²⁶ No such discretion is vested in the DOI with respect to endangered species. Also, acts that the DOI may prohibit under § 9 to protect threatened species are statutorily prohibited for endangered species.²⁷ [26 ELR 10020] While the DOI has an obligation to conserve experimental populations as it does with any threatened species, the specific methods that are employed are left to that agency.

Both § 10(j) and the DOI regulations for experimental populations require that a special rule, or "protective regulation," be published through the notice-and-comment process specifying particular prohibitions and exceptions for each experimental population.²⁸ Although all regulations pertaining to endangered species generally apply equally to threatened species,²⁹ management of experimental populations becomes more flexible than for endangered species through the more specific special rules. The DOI permits the following: The shooting of experimental populations of gray wolves when they are caught in the act of depredating livestock;³⁰ the relocation of individuals of the experimental southern sea otter population when they stray near oil drilling or fishing operations;³¹ and the abdication of most management responsibility for the Guam rail population to the government of the Mariana Islands,³² and for the Coloradosquawfish and woundfin populations to the state of Arizona and two Apache tribes.³³

The experimental population provision goes further. For purposes of the § 7 consultation requirement, the experimental population loses its threatened status and is considered merely proposed for listing, but only if the DOI determines that the population is "nonessential" to the continued existence of the species.³⁴ So, each federal agency is under an obligation only to "confer" informally with the DOI on any action that is likely to jeopardize the nonessential experimental population, rather than to engage in the usual formal consultation requirements of § 7.³⁵ However, if the population occurs on a national wildlife refuge or in a national park, or if the population is deemed to be "essential," the population is treated as threatened under § 7, and formal consultation may be required.³⁶

When the DOI designates a population as experimental, it must determine whether the population is essential or nonessential to the continued existence of the species as a whole, based on the "best available information."³⁷ The DOI defines "essential" as "an experimental population whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild."³⁸ All other experimental populations are deemed nonessential. Both Congress and the FWS indicated that the likelihood of an "essential" designation would be small, given that a goal of § 10(j) was to foster cooperative management.³⁹ In practice, the DOI makes these decisions based primarily on political realities rather than scientific or other criteria.⁴⁰ Every experimental population to date has been designated as nonessential.

The DOI cannot establish critical habitat for an experimental population designated as nonessential.⁴¹ However, the DOI may designate critical habitat for essential populations through an informal rulemaking process, except when the essential population overlaps with a natural population of the same species. Even then, critical habitat can be designated "as a revision to critical habitat of the natural population for reasons unrelated to the overlap itself."⁴² No critical habitat has been designated for any experimental populations.

Despite the unambiguous language that critical habitat cannot be designated for nonessential experimental populations, opponents invariably venture that perhaps, once a population becomes established in the release area, the FWS will surreptitiously designate critical habitat for the population.⁴³ This is unlawful and has never occurred.

The DOI's Regulations Implementing the Experimental Population Amendment

The same management flexibility theme present in the congressional record also is pervasive in the DOI's regulations implementing § 10(j).⁴⁴ These regulations define what it means to "further the conservation of species" in the context of experimental populations, and they emphasize consultation with local agencies and private individuals. The regulations also provide general guidance as to what the individualized experimental population rules must contain.

According to the implementing regulations, each experimental population must be reestablished outside the species' current range but within its probable historic range, unless the "primary habitat of the species has been unsuitably and [26 ELR 10021] irreversibly altered or destroyed."⁴⁵ Before authorizing the release of an experimental population, the DOI must determine that the release will further the conservation of the species, using the "best scientific and commercial data available."⁴⁶ The DOI borrowed this phrase from an identical passage in ESA § 4, which, according to Congress,precluded consideration of economic factors during the listing process.⁴⁷ Clearly, by copying this language, the DOI intended to exclude consideration of economic factors in determining whether establishing an experimental population will further the conservation of a species. Neither Congress nor the courts have spoken yet on the DOI's authority to interpret § 10(j) in this way. Arguably, Congress did not intend to grant the DOI this authority or it would have done so explicitly. On the other hand, Congress required the DOI to consider whether an experimental population was essential based on the "best available information," which implied that all available information, not just scientific data, could be considered. No similar language appears in the mandate to conserve species, perhaps meaning that Congress gave the DOI broad authority for conservation decisions under § 10(j).

The FWS considers four factors in deciding whether the release of each experimental population will further the conservation of the species:

(1) Any possible adverse effects on extant populations of a species as a result of the removal of individuals, eggs, or propagules for introduction elsewhere;

(2) The likelihood that any such experimental population will become established and survive in the foreseeable future;

(3) The relative effects that establishment of an experimental population will have on the recovery of the species; and

(4) The extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area.⁴⁸

In reality, the determination that a release conserves a species has sometimes been the result of social and political factors rather than scientific evidence. For example, the proposed release of critically endangered Mexican wolves under an experimental population regulation that allows incidental and intentional killing under certain conditions probably is not scientifically defensible.⁴⁹ Bowing to pressure from ranchers and hunters who adamantly oppose the release of wolves under full endangered species status, FWS officials are in effect choosing between release under § 10(j) and no release. The FWS can then argue that the chance is greater that an experimental release would recover the species than would no release at all.⁵⁰ By restating the issues, FWS officials can assert that they are using the best available scientific information to conserve Mexican wolves.

Although Congress merely urged the DOI to consult with other federal agencies, state and local governments, and private landowners when developing a § 10(j) special rule, the regulations mandate such consultation.⁵¹ Furthermore, any special rule "shall, to the maximum extent practicable, represent an agreement between the Fish and Wildlife Service, the affected State and Federal agencies and persons holding an interest in land which may be affected by the establishment of an experimental population."⁵²

The meaning of "consultation" under the § 10(j) amendment and the extent to which any agreement would bind the FWS legally is unknown. This language presents the potential for fruitful legal challenges, and litigation already has surfaced with approval of the Yellowstone/central Idaho gray wolf experimental population rule.⁵³ "Consultation" under the § 10(j) regulations certainly does not refer to formal consultation under § 7. First, Congress expressly exempted the FWS from the § 7 consultation requirement. Second, only federal agencies must consult with the FWS under § 7, whereas the § 10(j) regulations apply to state and local governments and private landowners as well. The crux of the problem is this: How many and what types of overt attempts at consulting with these entities and reaching agreements over the fate of experimental populations must the FWS make to satisfy the regulations?

The FWS issues special rules for experimental populations. The FWS has considerable discretion in each special rule to develop management guidelines, specific prohibitions, and exceptions for taking individual animals.⁵⁴ Each rule must specify the following: How the population will be identified, including its location, migration pattern, and number to be released; whether the population is essential or nonessential; the management considerations specific to the population (including exceptions to taking prohibitions under the ESA); and an evaluation scheme to determine the success or failure of the release on the species' conservation.⁵⁵

The level of detail the FWS has provided in each special rule to satisfy the above criteria has varied widely. The final rule to establish nonessential experimental populations of Colorado squawfish and woundfin into a portion of the Gila River in Arizona is among the most loosely worded and abstract rules. The special rule permitted the state of Arizona and tribal laws to regulate taking of these populations. Included was only general mention that the state collecting permit system and state and tribal fishing limits would govern. The affected Apache tribes did not even regulate squawfish per se. Also, incidental take by fishermen would [26 ELR 10022] not constitute an ESA violation if they return the fish to the wild; no enforcement, reporting, or monitoring programs were cited in the special rule. The management protocol called for annual stocking at two sites to be up to 100,000 fish, with only annual surveys to be conducted to determine the population's success.⁵⁶ Lax monitoring guidelines also are evident in the special rules for the Delmarva Peninsula fox squirrel,⁵⁷ the Guam rail,⁵⁸ and the yellowfin madtom.⁵⁹

The red wolf, however, has a more detailed special rule and tightly managed population. Specific protocols for release, monitoring, and management of red wolves were presented in the special rule. These included management responses to various potential conflicts between humans and wolves.⁶⁰ Management schemes were amended by rule to reflect differences between anticipated and actual management problems and to accommodate public concerns.⁶¹

The FWS' Process for Issuing Special Experimental Population Rules

The FWS has in every instance internally initiated the rulemaking process leading to the issuance of an experimental population rule. However, nothing in the ESA or the regulations precludes outside parties from requesting that the FWS reestablish populations as experimental. Certainly, pressure from outside groups influences the FWS' decisions to issue experimental population rules. The whooping crane recovery team had envisioned releasing a population into Florida, and livestock and farming operations objected to anything but nonessential experimental status.⁶² On the other hand, recovery plans that call for the reestablishment of listed species are already approved by the time the FWS contemplates an experimental population rule. So, the FWS already should be aware of the volatile issues involved and the parties that may object to release under full endangered species protection.

To reestablish a listed species under § 10(j), reestablishment must be a goal of the species' recovery plan. A goal for the threatened yellowfin madtom was to release the catfish into portions of its historic range where feasible and necessary.⁶³ The recovery plan for the Mexican wolf requires the reestablishment of a "viable, self-sustaining population of at least 100 Mexican wolves … within the Mexican wolf's historic range."⁶⁴

After a recovery plan is in place and the FWS identifies the need for an experimental population rule, it initiates various internal and public processes. The chronology varies widely with each special rule; however, a general description is helpful. The FWS often convenes an internal task force or interdisciplinary team to oversee the process. The first business typically involves informal consultation via letters, phone calls, followed by memoranda of understanding with potentially affected agencies and private entities.⁶⁵ During development of the proposed special rule, issues such as the population's size and location, the reestablishment protocol, the management plan, and social and economic issues are discussed. This process is an important first attempt by the FWS to fulfill its obligation to work cooperatively with state, tribal, local, and private entities in establishing an experimental population rule.

Often, the FWS chooses to conduct a formal, intraagency § 7 consultation and to issue a biological opinion on whether taking the desired number of endangered or threatened individuals from a wild or captive population for reestablishment would jeopardize the continued existence of the species. The FWS always issues no-jeopardy opinions for experimental populations. Common explanations for no-jeopardy findings are that removal of some individuals would represent only a small fraction of the expected natural mortality of the donor population⁶⁶ or that the selected individuals are genetically redundant with individuals remaining in the donor population.⁶⁷ Thus, if a catastrophe wipes out the experimental population, the genetic information [26 ELR 10023] of the species will not be lost. Each time the FWS finds "no jeopardy," it issues a § 9 permit to remove the individuals from the donor population.

The FWS also issues an environmental assessment (EA) under the National Environmental Policy Act (NEPA)⁶⁸ to determine whether the reestablishment is a major federal action significantly affecting the quality of the human environment. The process is reviewable by the public. Except for the highly controversial releases such as the gray wolf population, the FWS has yet to find a significant impact. A full-blown environmental impact statement (EIS) need not be completed in those instances, and the experimental population process can proceed.

Sometimes an EIS is required. It documents the proposed and alternative actions and the impacts of each action and alternative. Aside from the no-action alternative, the FWS is not bound to analyze any particular actions or alternatives in the EIS.⁶⁹

Once these procedures are completed, or concurrently with the NEPA process, the FWS prepares a proposed special rule for the experimental population. Each special rule addresses the management issues for the specific population to be released. Within each proposed rule, preamble to the proposed rule, EA, or EIS should be a risk assessment which explains why the release will further the conservation of the species: "No release will be attempted if the risk to the species is so great that it has little chance to succeed. Assessing the risk factor is inherent in the entire regulatory process."⁷⁰ Often, however, the FWS states in conclusory fashion that the release will further the conservation of the species because the recovery plan says so.⁷¹

The FWS publishes the proposed rule, including a proposal to add the experimental population onto the list of threatened and endangered species,⁷² in the Federal Register, which is followed by a public comment period and publication of the final rule. FWS regulations require periodic evaluations of the population's status.⁷³ The red wolf special rule required a formal five-year evaluation in addition to close monitoring of the population. That evaluation was published in 1993.⁷⁴

The FWS often has exercised its flexibility during the formation of the special rules. For example, when the FWS approached Smyth County, Virginia, in 1988 about releasing an experimental population of yellowfin madtom in the county, the county board objected without much explanation. So, the FWS took its proposal to nearby Washington County, which did not object.⁷⁵

Special Rules

Below are chronological summaries of all 10 rules⁷⁶ for experimental populations that are final or being developed by the FWS. The results of reestablishment efforts also are summarized.

Delmarva Fox Squirrel

The FWS designated the endangered Delmarva Peninsula fox squirrel as a nonessential experimental population on September 13, 1984. The goal of the rule was to reestablish the population into a state wildlife area in Sussex County, Delaware, 50 miles from the nearest wild population.⁷⁷ The purpose of the experimental status was to assuage squirrel hunters' concerns that they would be arrested under the ESA for accidentally shooting an endangered squirrel. Delaware and Maryland supported the nonessential experimental reintroduction.⁷⁸

The FWS found that the translocation would not likely jeopardize the continued existence of the remaining populations. The range of the Delmarva fox squirrel was expanding due to the state of Maryland's own successful translocation program, the small number of individuals to be removed would be small, and successful reintroduction would extend the range ofthe species. In addition, an EA found that the reintroduction would not significantly affect the quality of the environment. The FWS did not expect the experimental population to conflict with any human activities, and the state managed the wildlife area consistently with the squirrels' needs.⁷⁹

The protocol called for 6 to 18 fox squirrels from wild populations in Maryland to be translocated to the Assawoman Wildlife Area over 18 months. The rule allowed recreational hunters to accidentally take members of the experimental population under Delaware law.⁸⁰ The reestablished population would be monitored "periodically."⁸¹

The FWS translocated a population of nonessential experimental Delmarva fox squirrels to the release site in 1984 and 1985, totaling 13 animals. No individuals were shot by hunters. While some squirrels survived, monitoring data was too sparse to determine the reproductive success of the population. Translocations under full endangered species [26 ELR 10024] status have occurred at several other sites in Virginia, Maryland, and Delaware, with mixed success.⁸²

Colorado Squawfish and Woundfin

The FWS issued a special rule for the release of endangered Colorado squawfish and woundfin populations into a portion of the Gila River in Arizona as nonessential experimental, effective August 23, 1985.⁸³ The state of Arizona would not have cooperated with the release but for the nonessential experimental designation.⁸⁴

A biological opinion concluded that removal of woundfin from their current wild habitat would not jeopardize the species if the removal was conducted immediately below particular water diversions, where woundfin mortality was high due to strandings. The FWS did not issue a biological opinion regarding squawfish removal because the donor population was part of a successful captive breeding program. However, a separate biological opinion determined that implementation of the special experimental population rule would benefit both fish species. The FWS completed an EA, finding no significant impact from releasing the populations. The FWS received only 17 comments on the draft assessment.⁸⁵

The protocol was to stock fish annually for 10 years, up to 100,000 squawfish and up to 25,000 woundfin, in specifically defined areas isolated from existing populations of the species. Through cooperative agreements with the FWS, Arizona and the White Mountain and San Carlos Apache Tribes would regulate the taking of the two populations. Incidental taking that might restrict development activities would be allowed if the fish were still alive and returned to the water. Evaluations consisted of one annual seine-net survey.⁸⁶ Without factual support, the preamble to the rule stated that the likelihood was good that the experimental populations would become established and that release of the populations would further the conservation of the species.⁸⁷ Also missing from the special rule was discussion about the potential impacts of upstream damming on the released fish.⁸⁸

Until 1993, the captive woundfin population did not produce enough individuals to justify a release into the wild. If the breeding program continues to be as successful as it was in 1993, a release is possible in the future. The squawfish captive breeding program has met with success. Several releases of squawfish have been attempted; however, a wild experimental population has yet to be established.⁸⁹

Red Wolf

When Congress passed the § 10(j) amendment, it specifically used endangered red wolves as the example of a prime candidate for designation as an experimental population. So, it was no surprise that the FWS designated an experimental population of endangered red wolves on December 19, 1986, for Alligator River National Wildlife Refuge in North Carolina, and again on November 4, 1991, for the Great Smoky Mountains National Park in North Carolina and Tennessee. The FWS designated these populations as experimental to gain public and county acceptance and to placate livestock owners and private landowners.⁹⁰

The biological opinion for the Alligator River experimental population found no jeopardy in removing animals from the captive population because reintroduction was the only means of recovering the subspecies, as no naturally occurring wild populations remained. The nonessential status would conserve the species because the captive breeding program was successful, and released wolves that died or disappeared could readily be replaced. The EA found that the reintroduction would not significantly affect the quality of the human environment.⁹¹

The special rule for the Alligator River population detailed the release, monitoring, and management protocol. The FWS had primary management authority. Four to six radio-collared, mated pairs would be released over a one-year period within a defined experimental population area, for a population eventually reaching 35 animals. A person taking a red wolf incidentally to an otherwise lawful activity such as driving, hunting, or trapping would not be prosecuted if the taking was unavoidable, unintentional, and did not result from negligent conduct lacking reasonable due care. Wolves straying onto private property would be relocated. Wolves could be killed by anyone in defense of human life. In addition, FWS and state agents could kill or injure wolves that had depredated livestock, but only as a last resort. A five-year evaluation would be conducted.⁹²

The protocol for the national park population was slightly different. The National Park Service would share management responsibility with the FWS on national park grounds. Two mated pairs would be released at first and closely monitored using radio telemetry. If the initial release was successful, 6 to 8 more pairs would be released. The goal was to establish 50 to 70 wolves in the national park and adjacent U.S. Forest Service lands. Wolves dispersing from the national park would be recaptured. There would be no penalty for incidentally taking a wolf during lawful hunting, trapping, or other recreational activity, or in defense of human life, if the incident was reported promptly. Livestock owners could harass wolves that were caught preying on livestock if the owners reported the incident promptly.⁹³

[26 ELR 10025]

The FWS conducted its five-year evaluation in 1992, and it made revisions to the special rule for both populations. The changes in the special rule included allowing private livestock owners to kill offending animals on written FWS approval; applying the taking provisions (other than the taking reporting requirement) that apply inside the experimental population area to the area outside; and making the incidental take and livestock owner harassment provisions for the Alligator River population identical to the national park provisions.⁹⁴

In the Alligator River reintroduction area, 41 to 60 red wolves are free ranging, exceeding the short-term goal. Ten litters were born in the wild in 1995. The FWS recommended accommodating 30 more wolves, and it is allowing wolves to populate the nearby Pocosin National Wildlife Refuge, which still is in the experimental population area. The FWS initially released one family group of wolves into the national park in 1991. The following year, two more family groups were released. Two groups have established successfully, for a total of 9 to 11 wolves. Another family group will be released in the near future. The FWS is building a temporary nursery corral to protect livestock calves from wolf depredation. So far, about 20 calves have been killed by red wolves since 1987. Although the FWS deemed the project a success biologically and in terms of conflicts between humans and wolves, two counties passed anti-wolf ordinances based on a general resentment of governmental interference and ignorance about human-wolf interactions. In addition, anti-wolf groups are threatening to sue.⁹⁵

Southern Sea Otter

The FWS promulgated this special rule, effective August 11, 1987, under congressional authority to implement a transplantation plan in furtherance of the southern sea otter recovery plan.⁹⁶ The shellfishing and oil industries that operated in the area opposed a new protected area unless the area was clearly delineated and restrictions on commercial operations were minimal.⁹⁷

The FWS determined in a biological opinion that the translocation would not likely jeopardize the threatened species, as the translocation plan was expected to be successful. Establishing a new, isolated colony of sea otters would be the most effective way to recover the species because the chance of an oil spill wiping out the entire population would be lessened. The agency also prepared a full-blown EIS, which analyzed the economic impacts to the shellfishing and oil industries of the translocation plan and alternatives. The waters surrounding San Nicolas Island off the California coast were chosen as the release site because they met the minimum otter carrying capacity and other requirements under the recovery plan, fisheries would be least impacted over the alternative sites, and otter containment within the translocation zone would be easiest.⁹⁸

The special rule explained the translocation and management protocol in detail. The FWS and the California Department of Fish and Game would share management authority over the experimental population. About 70 otters would be released initially into the San Nicolas area (the translocation zone) from a parent population north of the translocation zone, with a maximum translocation of 250 otters over a period of five years or longer. Capture and release techniques already had been established for northern sea otters. The translocated otters would be monitored "intensively" until the population's carrying capacity was attained. The rule set up an otter-free zone, from which translocated otters would be removed and returned either to the San Nicolas otter translocation zone or to the parent population.⁹⁹ Once the experimental population reached its carrying capacity, otter dispersal into the no-otter zone would be contained by selective removal of individuals or initiating birth-control measures.¹⁰⁰ Within the translocation zone, formal § 7 consultation applied, as required by Congress.¹⁰¹ Only informal consultation was required in the no-otter zone. The no-otter zone, surrounding the translocation zone, was established under the direction of Congress, to accommodate the oil and shellfishing industries.¹⁰²

The FWS translocated a total of 139 otters from the main population between 1987 and 1990. Shortly after the releases, most disappeared. Recently, only 12 to 15 otters were located within the translocation zone. Based on biologists' knowledge of sea otter behavior and mortality factors, the FWS does not expect the experimental population to be viable for another 20 years. However, the main population has expanded, which may reduce the urgency of establishing a new population at San Nicholas.¹⁰³

Yellowfin Madtom

The FWS designated a nonessential experimental population of the Yellowfin madtom, a threatened species of catfish, on September 6, 1988. The FWS' goal was to reestablish the population within its historic range in the North Fork Holston River in Washington County, Virginia.¹⁰⁴ The FWS formulated the nonessential experimental rule to gain the cooperation of Virginia and county governments.¹⁰⁵

In a biological opinion, the FWS stated that removal of these fish would likely not jeopardize the species' continued existence because only 3 percent of the annual egg clutches would be taken. The FWS also concluded that the designation would further the conservation of the species by expanding the madtom's current range.¹⁰⁶ An EA determined that the action would not significantly affect the quality of the human environment. The FWS chose the EA's preferred alternative, to reestablish an experimental [26 ELR 10026] population, because Virginia would oppose reestablishment under full threatened status, thereby hindering recovery efforts.¹⁰⁷

The Virginia Commission of Game and Inland Fisheries, the Tennessee Wildlife Resources Agency, and the FWS would have management authority over the population. The protocol was to release 100 to 200 captive-raised fish into the release site. State laws would apply to taking, so accidental capture of a madtom would not result in prosecution. The FWS anticipated that a successfully reintroduced population could expand into Smyth County, Virginia, which opposed the experimental reintroduction. The FWS addressed this issue by concluding that the species could be delisted by the time the population reached Smyth County.¹⁰⁸

Although the propagation program is continuing, insufficient numbers of madtoms have been generated to release any fish into the wild. The FWS is planning to release a population of yellowfin madtoms into the Great Smoky Mountains National Park under full ESA protection.¹⁰⁹

Guam Rail

The FWS designated a population of the Guam rail, an endangered species, as nonessential experimental on October 30, 1989. The population was to be introduced onto the island of Rota in the Commonwealth of the Northern Mariana Islands (the Commonwealth), over 30 miles from Guam.¹¹⁰ Rota is outside the probable historic range of the Guam rail, but the rail's habitat within its historic range had been irreversibly altered by predation from the exotic brown tree snake and by habitat destruction. The rule had the support and participation of the local governments.¹¹¹

The captive breeding program had been highly successful, and the FWS determined that the species would not be jeopardized if individuals were taken from the captive flock to Rota. In addition, the FWS found that the project would have no significant impact on the environment.¹¹²

The FWS, the Commonwealth, and Guam agreed to cooperate in implementing the rule, whereby the Commonwealth and Guam would administer the program and the FWS would provide funding. The rule allowed agents of the Commonwealth, Guam, and the FWS to take rails that were depredating personal property or that needed special handling. In addition, private individuals could take rails under regulations to be created by the Commonwealth, if the FWS determined that the experimental population was well established. The FWS was satisfied that the Commonwealth's wildlife regulations would be sufficient to protect the population.¹¹³

The Commonwealth and Guam have attempted two to three releases, but none have been successful. According to the FWS, too few birds were released, monitoring was difficult, and predation was a problem. The governments are planning another release in the near future. The planned population was to be taken from a captive flock.¹¹⁴

Black-Footed Ferret

The rule for a nonessential experimental population of endangered black-footed ferrets became effective on August 21, 1991. The reestablishment site was the 2,068-acre Shirley Basin/Medicine Bow Management Area in Wyoming.¹¹⁵ The rule responded to landowners' and agricultural and recreational land users' concerns about potential restrictions under full endangered species status.¹¹⁶

Although the FWS predicted up to a 90-percent loss of released ferrets, the FWS issued a no-jeopardy opinion based on the successful captive breeding program. The FWS would use ferrets that were as genetically redundant as possible. The FWS designated the population as nonessential in part because the captive population was well established, the released ferrets would be as genetically redundant as possible with the captive population, and members of the experimental population that died or disappeared could readily be replaced by captive animals. The FWS prepared an EA, finding no significant impact.¹¹⁷

A goal of the recovery plan was to encourage a wide distribution of reintroduced black-footed ferret populations. The recovery plan called for reestablishment of ferrets when the captive population reached at least 200 animals. The detailed introduction protocol was for at least 20 members of the captive population to be released in 1991, and at least 50 more per year for two to four years, under a cooperative management plan between the FWS, the state of Wyoming, and affected landowners. Natural mortality was expected to be high, and the goal was to establish a population of 40 adults by 1996. The Wyoming Game and Fish Department and the FWS would have the authority to relocate ferrets found outside the management area or which conflicted with human activities. Monitoring would be intensive, and surveys would be conducted regularly. The release area comprised private, federal, and state lands and was capable of supporting 213 adult ferrets.¹¹⁸

Because most of the release area was privately owned and the FWS wanted members of the experimental population to disperse to other sites within the management area, it recognized that successful reintroduction could occur only with the cooperation of state and private landowners. Specific areas on private ranches to be maintained for prairie dogs (ferret prey) would be established "entirely at the prerogative of the landowner," and those on public lands leased for grazing would be established cooperatively with the rancher. The FWS stated that no [26 ELR 10027] additional land use restrictions would be placed on any lands within the management area. Taking a ferret would not lead to prosecution under the ESA if it was incidental to a lawful activity.¹¹⁹

For the most part, the affected ranchers have cooperated with the reintroduction effort in the Shirley Basin. The captive breeding program has been successful. The Shirley Basin releases took place between 1991 and 1994, totaling about 230 ferrets. Survival has been low, as predicted, due to high predation and wide dispersal, and a viable breeding population has not yet been established. Because black-footed ferret habitat in this area is considered low, the chance is not good that a viable population will become established there.¹²⁰

On August 18, 1994, the FWS also issued final rules to designate one nonessential experimental population in north-central Montana and one in southwestern South Dakota, both considered areas of high-quality habitat. The FWS issued an EA for the Montana site, finding no significant impact. The FWS published an EIS for the South Dakota population at the same time it released the rule. The protocol for both releases was nearly identical to the Wyoming process.¹²¹

Private parties, the Bureau of Land Management, and the Fort Belknap Indian Reservation owned the land designated as the experimental population area in Montana. Management authority rested on the state of Montana and the FWS. If ferrets dispersed from the reintroduction area, the tribe and private landowners could request their removal. The rule did not indicate that landowners must cooperate with the protocol, but the FWS found their cooperation essential to the success of the program.¹²² The nonessential experimental population area in the Conata Basin/Badlands in southwestern South Dakota included mostly federal land. Management of the population was the responsibility of the FWS, the U.S. Forest Service, and the National Park Service. Private landowners would be consulted if ferrets disperse onto their lands.¹²³

About 40 ferrets were released in Montana, and about 9 survive and are presumably breeding. Predation has been high, with about 20 killed by coyotes. However, the population has dispersed relatively little, meaning that the habitat quality is probably better there than in Wyoming. Monitoring is better than for the other populations.¹²⁴ The South Dakota population consists of a minimum of 5 to 6 animals from a total of about 40 that were released. Although the habitat quality is high, predation presumably also has been high. Close monitoring has not been conducted there.¹²⁵

Whooping Crane

Endangered whooping cranes received a nonessential experimental population designation on January 22, 1993. The chosen site was the Kissimmee Prairie area in central Florida.¹²⁶ The state of Florida and the livestock industry pressured the FWS to designate the experimental population as nonessential. Private land managers were willing to cooperate or not oppose the designation provided that the designation did not change existing lifestyles or potential income.¹²⁷

The biological opinion concluded that the action would not jeopardize the species because the population would be as genetically redundant as possible with the captive population, and birds could be replaced through captive breeding. The FWS claimed that the nonessential status was justified because the captive breeding program had been successful and the wild population appeared healthy. The EA determined that the action would not significantly affect the environment.¹²⁸

The failure of other recovery efforts led the FWS to pursue a nonmigratory, experimental population in Florida. The FWS reasoned that the experimental population would be geographically isolated because whooping cranes adhered to ancestral breeding and wintering grounds. The special rule called for the initial release of 9 to 12 captive-raised birds and annual release of 20 birds thereafter for 10 years. The release area consisted of state and private lands. Based on studies of preferred whooping crane habitat and successful release techniques developed for sandhill cranes, the FWS concluded that the likelihood of establishing a self-sustaining experimental population was good. The Florida Game and Fresh Water Fish Commission and the FWS had management and monitoring responsibility. The special rule detailed an intensive monitoring protocol. Both agencies had authority to capture and relocate cranes. Any incidental take from "otherwise lawful human activities," including grazing, recreation and farming, that was unavoidable, unintentional, and not negligent would not be prosecuted by the FWS. Under Florida law, whooping cranes cannot be taken without a permit.¹²⁹

Of the 25 birds released in Florida in 1993, 12 survive. Eight more were released in 1994. A male and a female have recently exhibited signs of pair bonding.¹³⁰

Gray Wolf

The Assistant Secretary of the Interior approved the final rules to reestablish two nonessential experimental gray wolf [26 ELR 10028] populations, one to Yellowstone National Park and one to central Idaho, in November 1994.¹³¹ The special rules were devised to gain the cooperation of livestock owners and big game hunters, and to minimize conflicts on public lands.¹³²

Under the EIS prepared for the release, recovered experimental populations would not affect hunter harvest of male ungulates but may impact female ungulates, would not affect private or public land uses, and would increase visitor use. About 130,000 comments were received on the draft EIS, more than any other EIS since the passage of NEPA in 1969.¹³³

Under the rules, gray wolves would be translocated from wild populations in Alberta, Canada. The populations would be released so long as wolves had not naturally recolonized the two areas at the time of the release. States and tribes would manage wolves occurring outside Yellowstone National Park. Wolves could be killed or relocated by federal, state, and tribal agencies for unacceptable impacts on domestic animals and excessive predation on ungulate populations. Private landowners and public land grazing lessees could harass wolves in a noninjurious manner at any time if reported promptly. Livestock producers on their private land could kill wolves in the act of killing livestock if they report the incident immediately and if authorized agency personnel confirm that the livestock was wounded or killed by wolves. The public could kill wolves in defense of human life;¹³⁴ however, instances of wolf attacks on humans are extremely rare in North America.¹³⁵ The FWS promised that no restrictions on use of private land would be applied when at least six wolf packs occupy an experimental population area. The FWS anticipated that gray wolves would recover in these areas by 2002.¹³⁶

In January 1995, the FWS and Canadian officials translocated 18 wolves to Yellowstone National Park and 15 wolves to central Idaho. After a temporary injunction was lifted, the wolves were released into temporary acclimation pens and then released. The FWS is deeming the first year a success biologically. The wolf packs generally are staying within the recovery areas. The Yellowstone population is monitored once a week, andthe central Idaho population is monitored biweekly. A suspect has been charged with intentionally killing a male wolf from the central Idaho population in the Red Lodge, Montana, area. The mate of this wolf had nine pups on nearby private lands (the landowners allowed full access to their lands). The FWS moved the female and her pups to her old acclimation pen and will keep them there until the pups are old enough to be left alone while the female is hunting. One central Idaho wolf has disappeared. The FWS has not implemented any land use restrictions, and reports of livestock depredations by members of the experimental population have been untrue.¹³⁷

Mexican Wolf

In June 1995, the FWS published a draft EIS to reestablish Mexican wolves in parts of Arizona and New Mexico. The preferred alternative is reintroduction of one population to the Blue Range area (Gila National Forest and Apache National Forest) in west-central New Mexico and east-central Arizona or another, smaller population to White Sands Missile Range in south-central New Mexico, both as nonessential experimental, followed by a second reintroduction in the other area if necessary and feasible. The proposal attempts to appease ranchers', big game hunters', and tribes' concerns about perceived land use restrictions and financial losses.¹³⁸

The proposed management protocol is as detailed as that for the gray wolf experimental populations. The FWS would gradually release up to 5 family groups of wolves into the White Sands area or up to 15 family groups into the Blue Range. The FWS projects that if both areas are used, a total of 120 wolves would inhabit these areas by the year 2004. Wolves dispersing out of the reintroduction areas would be returned to the release areas or placed in captivity. No private or tribal land use restrictions would be imposed for wolf recovery without the consent of the owner or tribe. Livestock owners on private or tribal land may harass Mexican wolves in a noninjurious manner and may be granted authority to take wolves in the act of depredating livestock. Livestock owners on public lands leased for grazing can harass wolves to scare them away or kill wolves if several conditions are met, such as documented previous livestock losses by wolves and physical evidence that the wolves were in the act of preying on the owners' livestock.¹³⁹

The FWS entered into a settlement agreement with environmental groups on May 21, 1993, to reestablish Mexican wolves as soon as possible and to prepare an EIS by May 1994.¹⁴⁰ The FWS obviously failed to meet this EIS deadline, but it is proceeding with release plans, including publishing the final EIS, planning an acclimation facility for wolves and revising the Mexican wolf recovery plan. No biological opinion has been completed yet on whether taking wolves from the captive population would likely jeopardize the subspecies. However, the FWS is expected to find no jeopardy because it would use genetically redundant animals for the releases.

[26 ELR 10029]

Litigation

Yellowstone National Park/Central Idaho Gray Wolf Populations

Thus far, only the Yellowstone/central Idaho gray wolf experimental population rule has generated litigation. A farm group has sued to stop the release of wolves,¹⁴¹ and an environmental group has sued to have the FWS release wolves under full ESA protection.¹⁴² The lawsuits were consolidated in the U.S. District Court for the District of Wyoming.

After the DOI and the U.S. Department of Agriculture approved the EIS preferred alternative that called for reintroduction as two experimental populations, the American Farm Bureau Federation and its Montana, Wyoming, and Idaho affiliates filed a notice of intent to sue the federal government.¹⁴³ After the Assistant Secretary of the Interior signed the final rule but before wolves were transported from Alberta, Canada, to the experimental population areas, these parties, now joined by the Mountain States Legal Foundation, filed a motion for a preliminary injunction to stop the release. U.S. District Court Judge Downes denied the motion, finding the plaintiffs' arguments of immediate harm unpersuasive: "Plaintiffs offered only fear and speculation of some livestock depredation in the indefinite future."¹⁴⁴ On January 11, 1995, as 12 wolves were being transported to the United States, the plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit. The court granted a temporary stay but then dissolved it the next day.¹⁴⁵ On January 5, 1995, an environmental coalition filed suit against the DOI in the District of Idaho.¹⁴⁶

The Farm Bureau plaintiffs made three arguments regarding § 10(j) in their notice of intent to sue the DOI.¹⁴⁷ The government will not respond until briefs are due, but an anticipated rebuttal follows the description of each argument. The plaintiffs first argued that the DOI acted outside its scope of authority by issuing the experimental population rule. The Yellowstone and central Idaho experimental population areas are not within the species' historic range because the Canadian donor population is a different species than the extinct wolf species that once inhabited the northern Rocky Mountains. A likely rebuttal by the federal government is that Canis lupus, the North American wolf species, historically ranged over the entire continent; only a minority of taxonomists would classify Canadian and northern Rocky Mountain wolves as separate subspecies. The government may say it is entitled to deference in its choice of taxonomic classifications.

Second, the Farm Bureau asserted that contrary to the FWS' affirmative duty to treat the special rule as an agreement (to the extent practicable) between it and potentially affected parties, the FWS has not held substantive discussions with them. The government may counter that it invited the ranching constituency many times to participate in the process, but the ranching groups' ardent stance against any release of wolves whatsoever left little room for cooperation.

Third, the Farm Bureau argued that releasing the Canadian wolves into Wyoming and Idaho will not further the conservation of the species because failure to establish the experimental populations will not harm the species and because hybridization with coyotes may occur.¹⁴⁸ The government is expected to rebut that its duty is not to keep existing populations from harm, but to actively conserve the species, and reestablishment of wolves in previously extirpated range conserves the species. Furthermore, concerns about hybridization are speculative.¹⁴⁹

The environmental coalition plaintiffs took umbrage with the fact that naturally occurring wolves that migrate into the experimental population area, and their offspring, will lose their endangered species status and become part of the experimental population for management purposes.¹⁵⁰ The federal government may argue that it correctly distinguished between individual wolves that move into or through the experimental population area and viable breeding packs migrating into the experimental population area. The FWS created a management agenda for individual wolves but not for breeding packs. The FWS would say that the environmental coalition's concern is speculative because no naturally occurring packs are expected to migrate into the area in the near future. Furthermore, actual management differences between the experimental population and naturally occurring populations elsewhere are minimal.¹⁵¹ Interestingly, the one premise shared by the Farm Bureau and the environmental plaintiffs is that wolves already exist in or will soon naturally recolonize the experimental population areas.

Mexican Wolf Population

Litigation is expected when the FWS finalizes the Mexican wolf experimental population rule. The parties will likely argue over whether the rule approximates an "agreement" among the states, county governments, tribes, and landowners, and whether the possibility of hybridization with coyotes or dogs would compromise the FWS' obligation to conserve Mexican wolves. The FWS has attempted to keep ranching and hunting groups, potentially affected counties, and tribes informed and has invited them to submit economic and other information for inclusion in the draft EIS. Arizona and New Mexico have generally cooperated but local governments and some tribes have resisted giving useful information to the FWS. While the Mexican wolf [26 ELR 10030] recovery plan requires the FWS to reestablish Mexican wolves in the Southwest, the affected counties remain adamantly opposed to any release of wolves. The legal sufficiency of the FWS' attempts to involve them is unknown. Nothing approaching an agreement has been reached, but the FWS arguably may have fulfilled its obligation to reach an agreement "to the maximum extent practicable" by continuing to inform and request input from the counties.

Analysis

As the gray wolf litigation demonstrates, such legal and social conflicts over experimental populations will surface repeatedly. One mistaken assumption is that "experimental" connotes an experiment of limited duration.¹⁵² Many local government representatives, resource users, tribes, and others opposed to Mexican wolf reintroduction have wanted to know exactly when the experiment will end and the wolves taken back to captivity. Perhaps Congress labeled the § 10(j) amendment inaccurately, but it has not asked the FWS to limit the duration that experimental populations can occupy a release area. The ultimate goal in most instances is to delist species, and reestablishing populations indefinitely is the only way to recover some listed species, especially when they have been entirely extirpated from the wild. Convincing skeptics that reestablishing viable populations of listed species in the wild does not necessarily correlate with land use restrictions has been increasingly difficult for the FWS. But it has succeeded in obtaining the necessary cooperation, at least in the short term, for the controversial black-footed ferret and red wolf experimental populations, and it will have to do it again if the experimental population idea is to survive.

However, neither Congress nor the FWS has squarely addressed the consequences when an experimental population succeeds or partially succeeds. Although some special rules indicate that the downlisting or delisting process would begin when the population reaches a numerical level, others do not. The release processes can be fraught with uncertainties, and predicting the dispersal capability and management needs of many species often is not known until the animals are released. Unanticipated events such as human intervention or the discovery of a wild population within an experimental population area can open the experimental population rule process to substantial criticism, even when the basis for criticism is irrational.¹⁵³ These uncertainties belie the optimistic reliance in many of the experimental population rules on the fact that delisting will in fact occur.¹⁵⁴ It is likely that at least some releases will result in viable, breeding populations that cumulatively are still too unstable to merit delisting of the species, or some experimental populations will succeed locally but remain too isolated to contribute to the conservation of the species. Currently, the FWS either ignores the possibility of a partially successful experimental population or relies on simplistic, assumption-loaded models to estimate the number of animals or the conditions required to deem the experimental population viable. Instead, the FWS should directly present foreseeable obstacles to reaching FWS goals for each experimental population. Interest groups and landowners have demonstrated that they will not fully cooperate in establishing experimental populations until the FWS directly addresses potential management and political problems that will arise when reestablished populations become viable but are still protected under the ESA.

The meaning of § 10(j) and the FWS' implementing regulations so far have not been resolved in court. As the release process evolves for the more controversial species and as criticism of the ESA intensifies,¹⁵⁵ opposition by user groups will not subside. The extent to which the FWS must treat all affected parties as partners in the process is unknown. With the experimental wolf populations in particular, the FWS is in a bind in that the recovery plans call for repatriation of wolves within their historic range, but ranchers, landowners, and local governments largely refuse to cooperate.

Conclusion

Extensive discussion of these concerns is premature: Only the gray wolf and red wolf experimental populations are decisively stalking the path to success; and sparks from litigation over the gray wolf experimental populations are just beginning to fly. Clearly, however, the experimental population process may be one of the few avenues for recovering those species that were extirpated from their native range, notwithstanding that many of the releases have been failures. The experimental population amendment was Congress' attempt to address the ever-increasing conflict between humans and wildlife, as human encroachment into wild areas continues unabated. Whether this attempt will be successful will depend on events that will be played out both in the field and in the courtroom. In the future, look for experimental rules for the wood bison, the Aleutian Canada goose, and possibly the red-crowned crane and the grizzly bear.

1. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

2. Id. § 1539(j), ELR STAT. ESA § 10(j).

3. H.R. REP. NO. 567, 97th Cong., 2d Sess. 34 (1982) [hereinafter H.R. REP. NO. 567]; S. REP. NO. 418, 97th Cong., 2d Sess. 8 (1982) [hereinafter S. REP. NO. 418].

4. 16 U.S.C. § 1536, ELR STAT. ESA § 7. Section 7 requires federal agencies to conserve federally listed species and to ensure that their actions are not likely to jeopardize the continued existence of listed species or result in the adverse modification of the habitat of listed species. To so ensure the species' continued survival, federal agencies must consult with the Secretary of the Interior over jeopardy.

5. Memorandum from the Assistant Solicitor, Fish and Wildlife, U.S. Department of the Interior, to the Associate Director, Federal Assistance, U.S. Fish and Wildlife Service 4 (Mar. 11, 1983) (application of ESA § 10(j) to experimental populations of plants and invertebrates; scope and application of § 10(j)) [hereinafter Memorandum from Assistant Solicitor] (on file with author). ESA § 9 prohibits any person, including private landowners, public land permittees, and states, from "taking" a federally listed species. 16 U.S.C. § 1538, ELR STAT. ESA § 9. "Take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Id. § 1532(19), ELR STAT. ESA § 3(10).

6. The Mexican wolf release is being proposed, and insufficient numbers of yellowfin madtoms have been produced in captivity to merit a release.

7. E.g., 16 U.S.C. §§ 1532(3), 1533(d) & (f), ELR STAT. ESA §§ 3(3), 4(d) & (f).

8. Id. § 1533(f), ELR STAT. ESA § 4(f) ("The Secretary shall develop and implement recovery plans ….").

9. H.R. REP. NO. 567, supra note 3, at 9.

10. Id. at 34; S. REP. NO. 418, supra note 3, at 9.

11. H.R. REP. NO. 567, supra note 3, at 34.

12. Id.

13. Id.

14. Id.

15. 50 C.F.R. § 17.84(e) (1994).

16. Id. § 17.84(b).

17. Id. § 17.84(c).

18. U.S. FWS, REGION VI, FINAL ENVIRONMENTAL IMPACT STATEMENT: THE REINTRODUCTION OF GRAY WOLVES TO YELLOWSTONE NATIONAL PARK AND CENTRAL IDAHO 2-9 (1994) [hereinafter GRAY WOLVES REINTRODUCTION EIS].

19. 16 U.S.C. § 1539(j)(1), ELR STAT. ESA § 10(j)(1); 50 C.F.R. § 17.80(a).

20. Memorandum from Assistant Solicitor, supra note 5, at 2.

21. 50 C.F.R. § 17.84(g).

22. Id. § 17.84(d).

23. 16 U.S.C. § 1539(j)(2), ELR STAT. ESA § 10(j)(2).

24. Id. § 1539(j)(1), ELR STAT. ESA § 10(j)(1). According to Congress, geographic isolation was vital to protect naturally occurring populations of the same species, i.e., fully protected under the ESA, and to avoid law enforcement problems. H.R. REP. NO. 567, supra note 3, at 33.

25. 16 U.S.C. § 1539(j)(2)(C), ELR STAT. ESA § 10(j)(2)(C).

26. Id. § 1533(d), ELR STAT. ESA § 4(d).

27. Id. §§ 1533(d), 1538(a), ELR STAT. ESA §§ 4(d), 9(a). For example, the DOI may prohibit any person from taking a threatened species, but the DOI must prohibit the taking of an endangered species, subject to limited exceptions. The DOI may make it unlawful to "possess, sell, deliver, carry, transport, or ship" any threatened species, but the DOI has no such discretion with respect to endangered species. Id. § 1538(a)(1), ELR STAT. ESA § 9(a)(1).

28. Id. § 1539(j)(3), ELR STAT. ESA § 10(j)(3); 50 C.F.R. § 17.82.

29. 50 C.F.R. § 17.31.

30. GRAY WOLVES REINTRODUCTION EIS, supra note 18.

31. 50 C.F.R. § 17.84(d).

32. Id. § 17.84(f).

33. Id. § 17.84(b).

34. 16 U.S.C. § 1539(j)(2)(C)(i), ELR STAT. ESA § 10(j)(2)(C)(i).

35. 50 C.F.R. § 17.83.

36. 16 U.S.C. § 1539(j)(2)(C)(i), ELR STAT. ESA § 10(j)(2)(C)(i).

37. Id. § 1539(j)(2)(B), ELR STAT. ESA § 10(j)(2)(B).

38. 50 C.F.R. § 17.81(b).

39. H.R. CONF. REP. NO. 835, 97th Cong., 2d Sess. 34 (1982); Endangered and Threatened Wildlife and Plants; Experimental Populations, 49 Fed. Reg. 33885, 33890 (Aug. 27, 1984); see supra notes 10 and 11 and accompanying text. When an experimental population is designated as essential, it retains the very protections that groups with which the FWS must cooperate find unacceptable, namely the potential for a critical habitat designation. Critical habitat designations are a central theme of the land use restriction scare and are in part driving the recent push for legislative reform of the ESA.

40. To win the support of other agencies, tribes, states, local governments, or landowners, the FWS has had to compromise on the critical issue of essentiality. The special rules section below briefly describes the motivations behind the nonessential experimental classification for each population. See infra notes 76-140 and accompanying text.

41. 16 U.S.C. § 1539(j)(2)(C)(ii), ELR STAT. ESA § 10(j)(2)(C)(ii).

42. 50 C.F.R. § 17.81(f).

43. The White Mountain Apache Tribe might characterize the FWS in this way. The razorback sucker had occurred in the Salt River historically but had been extirpated. Before the sucker was listed as an endangered species in 1991, the FWS and Arizona entered into a memorandum of understanding to release a population of the fish into the Salt River, which runs through tribal land. The purpose of the agreement was to "experimentally" restore the species so that listing could be avoided. The release was not successful, and FWS officials believe that at best a small population survived the experimental release. The regulation listing the species as endangered did not exclude the Salt River population; therefore, the population, if one existed, was fully protected under the ESA. Telephone Interview with Leslie Fitzpatrick, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service (June 1, 1995). Attorneys for the tribe were outraged that the FWS designated the Salt River as critical habitat for the experimentally released (but not experimental) razorback sucker population in 1994.

44. Experimental Populations, 50 C.F.R. §§ 17.80-.84.

45. Id. §§ 17.80(a), 17.81(a). The FWS designated a population of the endangered Guam rail as experimental in 1989 and authorized its release onto the island of Rota in the Commonwealth of the Northern Mariana Islands, even though Rota was outside the species' probable historic range. The reasoning was that the brown tree snake, an exotic predator of the rail that occupies all of Guam, was the probable cause of the rail's decline; thereby, all primary habitat within the rail's historic range was "indefinitely altered." 54 Fed. Reg. 43966 (Oct. 30, 1989).

46. 50 C.F.R. § 17.81(b).

47. H.R. REP. No. 567, 97th Cong., 2d Sess. 20 (1982), reprinted in 1982 U.S.C.C.A.N. 2820; Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411 (codified at 16 U.S.C. § 1533(b)(1)(A), ELR STAT. ESA § 4(b)(1)(A)).

48. 50 C.F.R. § 17.81(b); for applications, see special rules section, infra notes 76-140 and accompanying text.

49. Less than 100 Mexican wolves are known to survive, all in captive breeding facilities.

50. Note that although the most scientifically defensible, the alternative of releasing wolves under full ESA protection is not the logical choice. Released wolves would have a good chance of being shot by angry ranchers, and the political fallout could delay wolf restoration for years.

51. 50 C.F.R. § 17.81(d).

52. Id.

53. See litigation section, infra notes 141-51 and accompanying text.

54. 50 C.F.R. § 17.82.

55. Id. § 17.81(c).

56. Id. § 17.84(b); Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for Certain Introduced Populations of Colorado Squawfish and Woundfin, 50 Fed. Reg. 30188 (July 24, 1985); for criticisms of the draft rule, see Memorandum from Charles P. Raynor, Assistant Solicitor, Branch of Fish and Wildlife, to Ralph O. Morgenweck, Assistant Director, Fish and Wildlife Enhancement, U.S. Fish and Wildlife Service (Oct. 26, 1988) (Solicitor's Office recommendations on the draft final rule to determine experimental population status for a new population of Colorado squawfish) [hereinafter Memorandum from Charles P. Raynor] (on file with author).

57. 50 C.F.R. § 17.84(a).

58. Id. § 17.84(f).

59. Id. § 17.84(e).

60. Id. § 17.84(c); Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for an Introduced Population of Red Wolves in North Carolina, 51 Fed. Reg. 41790 (Nov. 19, 1986); Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for an Introduced Population of Red Wolves in North Carolina and Tennessee, 56 Fed. Reg. 56325 (Nov. 4, 1991).

61. 58 Fed. Reg. 62086 (Nov. 24, 1993).

62. Interview with Dr. Jim Lewis,Whooping Crane Coordinator, U.S. Fish and Wildlife Service, Southwest Regional Office, in Albuquerque, N.M. (Mar. 11, 1994).

63. Endangered and Threatened Wildlife and Plants; Determination of Nonessential Experimental Population Status for an Introduced Population of the Yellowfin Madtom in Virginia and Tennessee, 53 Fed. Reg. 29335 (Aug. 4, 1988).

64. U.S. FWS, REGION II, MEXICAN WOLF RECOVERY PLAN 23 (1982).

65. For the experimental population of black-footed ferrets in north-central Montana, a working group, consisting of the state of Montana, the FWS and the Bureau of Land Management, convened to identify issues and develop a management plan. The state of Montana also formed an advisory committee, composed of representatives of Montana, the Department of Agriculture, the Bureau of Indian Affairs, the Fort Belknap Indian Tribe, the National Wildlife Federation, and the Yale School of Forestry and Environmental Studies, as well as business representatives, landowners, and a county agent. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in Southeastern Wyoming, 56 Fed. Reg. 41473 (Aug. 21, 1991). The Mexican wolf environmental impact statement interdisciplinary team consisted of the FWS, U.S. Forest Service officials representing the potentially affected national forests, the Department of Agriculture's Animal Damage Control, U.S. Department of Defense representatives, Apache tribal representatives, and the Arizona and New Mexico fish and wildlife agencies. Input also was requested of county governments, livestock associations, experts in various disciplines, and interested individuals.

66. See, e.g., Endangered and Threatened Wildlife and Plants; Determination of Nonessential Experimental Population Status for an Introduced Population of the Yellowfin Madtom in Virginia and Tennessee, 53 Fed. Reg. 29335 (Aug. 4, 1988) (the special rule for the yellowfin madtom experimental population).

67. See, e.g., 50 C.F.R. § 17.84(g) (the black-footed ferret experimental population rule); Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in Southeastern Wyoming, 56 Fed. Reg. 41473 (Aug. 21, 1991); 58 Fed. Reg. 19220 (Apr. 13, 1993); 59 Fed. Reg. 33005 (June 27, 1994).

68. 42 U.S.C. §§ 4321-4370(d), ELR STAT. NEPA §§ 2-209.

69. 40 C.F.R. § 1502.14 (1995). For example, alternatives analyzed in the gray wolf EIS included reintroducing wolves under full ESA protection and as an experimental population, and encouraging natural recolonization. The chosen action was reintroduction as a nonessential experimental population. GRAY WOLVES REINTRODUCTION EIS, supra note 18. On the other hand, all the alternatives analyzed in the EIS for the southern sea otter population dealt with nonessential populations for different sites. 52 Fed. Reg. 29754 (Aug. 11, 1987).

70. 49 Fed. Reg. 33885 (Aug. 27, 1984) (preamble to the experimental population procedural regulations).

71. See, e.g., Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for Certain Introduced Populations of Colorado Squawfish and Woundfin, 50 Fed. Reg. 30188 (July 24, 1985) (the preamble to the Colorado squawfish/woundfin special rule).

72. 50 C.F.R. § 17.81(e).

73. Id. § 17.81(c)(4).

74. Id. § 17.84(c); Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for an Introduced Population of Red Wolves in North Carolina, 51 Fed. Reg. 41790 (Nov. 19, 1986); 58 Fed. Reg. 62086 (Nov. 24, 1993).

75. Endangered and Threatened Wildlife and Plants; Determination of Nonessential Experimental Population Status for an Introduced Population of the Yellowfin Madtom in Virginia and Tennessee, 53 Fed. Reg. 29335 (Aug. 4, 1988).

76. One of these rules covers two species. See 50 C.F.R. § 17.84(b); infra notes 83-89 and accompanying text.

77. 50 C.F.R. § 17.84(a).

78. Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for an Introduced Population of Delmarva Fox Squirrel, 49 Fed. Reg. 35951 (Sept. 13, 1984).

79. Id.

80. Id.

81. 50 C.F.R. § 17.84(a).

82. Telephone Interview with Judy Jacobs, U.S. Fish and Wildlife Service, Chesapeake Bay Field Office, Maryland (Jan. 24, 1994).

83. 50 C.F.R. § 17.84(b).

84. Telephone Interview with Steve Spangle, U.S. Fish and Wildlife Service, Southwest Regional Office, New Mexico (Mar. 11, 1994) [hereinafter Telephone Interview with Steve Spangle].

85. Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for Certain Introduced Populations of Colorado Squawfish and Woundfin, 50 Fed. Reg. 30188 (July 24, 1985).

86. 50 C.F.R. § 17.84(b); 50 Fed. Reg. at 30188.

87. 50 Fed. Reg. at 30188.

88. Memorandum from Charles P. Raynor, supra note 56.

89. Telephone Interview with Steve Spangle, supra note 84.

90. 50 C.F.R. § 17.84(c); Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for an Introduced Population of Red Wolves in North Carolina, 51 Fed. Reg. 41790 (Nov. 19, 1986); Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for an Introduced Population of Red Wolves in North Carolina and Tennessee, 56 Fed. Reg. 56325 (Nov. 4, 1991).

91. 51 Fed. Reg. at 41790.

92. Id.

93. 56 Fed. Reg. at 56325.

94. 60 Fed. Reg. 18940 (Apr. 13, 1995).

95. Id.; Telephone Interview with Gary Henry, U.S. Fish and Wildlife Service, Asheville Field Office, North Carolina (June 7, 1995).

96. 50 C.F.R. § 17.84(d).

97. Endangered and Threatened Wildlife and Plants; Establishment of an Experimental Populationof Southern Sea Otters, 52 Fed. Reg. 29754 (Aug. 11, 1987).

98. Id.

99. 50 C.F.R. § 17.84(d).

100. 52 Fed. Reg. at 29754.

101. Pub. L. No. 99-625, § 1(c)(1), 100 Stat. 3500, 3501 (1986).

102. Id. § 1(b).

103. Telephone Interview with Carl Benz, U.S. Fish and Wildlife Service, Ventura Field Office, California (Mar. 3, 1994).

104. 50 C.F.R. § 17.84(e).

105. Endangered and Threatened Wildlife and Plants; Determination of Nonessential Experimental Population Status for an Introduced Population of the Yellowfin Madtom in Virginia and Tennessee, 53 Fed. Reg. 29335 (Aug. 4, 1988).

106. Id.

107. ASHEVILLE FIELD OFFICE, U.S. FWS, ENVIRONMENTAL ASSESSMENT: DESIGNATION OF A NONESSENTIAL EXPERIMENTAL POPULATION OF YELLOWFIN MADTOM (NOTURUS FLAVIPINNIS) 1 (undated).

108. 53 Fed. Reg. at 29335.

109. Telephone Interview with Richard Biggins, U.S. Fish and Wildlife Service, Asheville Field Office, North Carolina (Feb. 1994).

110. 50 C.F.R. § 17.84(f).

111. Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for an Introduced Population of Guam Rails on Rota in the Commonwealth of the Northern Mariana Islands, 54 Fed. Reg. 208 (Oct. 30, 1989).

112. Id.

113. Id.

114. Telephone Interview with U.S. Fish and Wildlife personnel, Pacific Islands Office, Hawaii (Jan. 1994).

115. 50 C.F.R. § 17.84(g).

116. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in Southeastern Wyoming, 56 Fed. Reg. 41473 (Aug. 21, 1991).

117. Id.

118. Id.

119. Id.

120. Jerry Godbey & Dean Biggins, Recovery of the Black-Footed Ferret: Looking Back, Looking Forward, 19(1) ENDANGERED SPECIES TECH. BULL. 10-13 (1994); Telephone Interview with Ronald W. Natan, U.S. Fish and Wildlife Service, Rocky Mountain Regional Office, Colorado (Jan. 26, 1994).

121. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in North-Central Montana, 59 Fed. Reg. 42682 (Aug. 18, 1994); Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Black-Footed Ferrets in Southwestern South Dakota, id. at 42696.

122. Id. at 42682.

123. Id. at 42696.

124. Telephone Interview with Ronald W. Natan, supra note 120.

125. Telephone Interview with Peter Gober, U.S. Fish and Wildlife Service, Pierre Field Office, South Dakota (June 7, 1995).

126. 50 C.F.R. § 17.84(h).

127. Endangered and Threatened Wildlife and Plants; Establishment of an Experimental Nonessential Population of Whooping Cranes in Florida, 58 Fed. Reg. 5647 (Jan. 22, 1993).

128. Id.

129. Id.

130. Regional News, 19(3) ENDANGERED SPECIES TECH. BULL. 2 (1994); Interview with Dr. Jim Lewis, supra note 62.

131. 50 C.F.R. § 17.84(i); Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 60252 (Nov. 22, 1994); Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Central Idaho and Southwestern Montana, 59 Fed. Reg. at 60266.

132. 59 Fed. Reg. at 60252; Id. at 60266.

133. HANK FISCHER, WOLF WARS: THE REMARKABLE INSIDE STORY OF THE RESTORATION OF WOLVES TO YELLOWSTONE (1995).

134. 59 Fed. Reg. at 60252, 60255.

135. L. David Mech, Who's Afraid of the Big Bad Wolf? AUDUBON, Mar. 1990, at 82.

136. 59 Fed. Reg. at 60252, 60255.

137. Memorandum from Ed Bangs, Gray Wolf Recovery Coordinator, to Regional Director, Region VI, U.S. Fish and Wildlife Service 1-3 (May 18, 1995) [hereinafter Memorandum from Ed Bangs] (on file with author).

138. U.S. FWS, REGION II, DRAFT ENVIRONMENTAL IMPACT STATEMENT: REINTRODUCTION OF THE MEXICAN WOLF WITHIN ITS HISTORIC RANGE IN THE SOUTHWESTERN UNITED STATES (1995).

139. Id.

140. Wolf Action Group v. United States, No. CIV-990-0390-HB (D.N.M. May 3, 1993) (stipulated settlement agreement).

141. Wyoming Farm Bureau Fed'n v. Babbitt, No. 94-CV-286-D (D. Wyo. filed Nov. 25, 1994).

142. National Audubon Soc'y v. Babbitt, No. CIV95-0305-S-HLR (D. Idaho filed Jan. 5, 1995).

143. Letter from American Farm Bureau Federation to Bruce Babbitt, Secretary of the Interior (Sept. 26, 1994) [hereinafter Letter from American Farm Bureau Federation] (on file with author).

144. Wyoming Farm Bureau Fed'n v. Babbitt, No. 94-CV-286-D, slip op. at 9 (D. Wyo. Jan. 3, 1995).

145. Wyoming Farm Bureau Fed'n v. Babbitt, No. 95-8000, slip op. (10th Cir. Jan. 12, 1995).

146. Complaint for Declaratory Relief, National Audubon Soc'y v. Babbitt, No. CIV95-0305-S-HLR (D. Idaho Jan. 5, 1995) [hereinafter Audubon Complaint].

147. Letter from American Farm Bureau Federation, supra note 143.

148. Id.

149. See FISCHER, supra note 133 (discussing various arguments over gray wolf restoration).

150. Audubon Complaint, supra note 146.

151. See FISCHER, supra note 133.

152. For instance, the Bureau of Land Management asked how long the experimental reintroduction period would last for the Colorado squawfish and woundfin populations. Endangered and Threatened Wildlife and Plants; Determination of Experimental Population Status for Certain Introduced Populations of Colorado Squawfish and Woundfin, 50 Fed. Reg. 30188, 30190 (July 24, 1985); see also supra note 108 and accompanying text.

153. The fear that wolves running wild will devastate the livestock industry, cause rampant land use restrictions, and terrorize our children is simply unfounded. See Mech, supra note 135; Memorandum from Ed Bangs, supra note 137.

154. For example, see the FWS' conclusion that moving southern sea otters to the experimental population area would not likely jeopardize the species because the new population was expected to be successful, supra note 98 and accompanying text.

155. Key leaders of the new Republican majority in Congress have introduced legislation that substantially weakens the ESA. Some have been so dogged in their opposition to wolf reintroduction that they have called hearings on the matter, and they have vowed to gut funding for wolf reintroduction beginning in 1996.

26 ELR 10018 | Environmental Law Reporter | copyright © 1996 | All rights reserved