Tenth Circuit lets the dogs out

Federal and state law requires the U.S. Fish and Wildlife Service to obtain a permit from the State of New Mexico before releasing wolves into the State. That has worked out for almost two decades, but recently the State withheld approval for more wolf releases to protect local wildlife, domestic livestock, and its citizens from marauding wolf packs. Rather than follow the law, the Service is releasing, and threatening to release, more wolves into the wild without the State’s consent. Last year, the New Mexico Department of Game and Fish obtained an injunction against the Service to stop future releases until the Service provides a management plan that protects state resources. But yesterday, the Tenth Circuit Court of Appeals rescinded the injunction paving the way for more wolf releases without notice to the State or regard for the effects. Although it’s obvious that the translocation of a few hundred Mexican wolves into the State will have drastic effects on other wildlife, domestic animals, and the people of New Mexico, the court concluded the State did not “prove” sufficient harm to delay the wolf releases.

As we explained in our amicus brief, the U.S. Fish and Wildlife Service has released captive-bred Mexican gray wolves into the wilds of New Mexico for almost 20 years. These wolves are deemed “nonessential” experimental populations because they are not critical to the survival of the species as a whole.  But they are critical to the survival of other species on which the wolves prey such as wild deer and elk populations as well as livestock and pets.

According to the Service, a single wolf may kill over 20 elk and deer per year.  In 2015, wolf depredation affected 102 domesticated animals, including cattle, horses, and pet dogs.  The  cattle mortality rate that year was the highest recorded since wolf releases began.  The Service also investigated 16 instances of wolf nuisance behavior, including wolves near houses or in proximity to people.  Wolves have been observed following children home from school. The current population totals nearly 100 wolves with 21 packs. But the Service plans to inject hundreds of wolves into the countryside, guaranteeing greater conflicts.

Due to the effect such releases have on the sovereign power of the states to manage wildlife within their borders and to protect local landowners from depredation, Congress requires the Service to cooperate with the states in developing joint conservation plans.  To that end, the Service adopted a regulation that requires the Service to comply with state permitting requirements before releasing experimental populations into the wild.

That worked until last year when New Mexico denied release permits to the Service for its failure to address the harms the new releases would cause state and private resources. The Service ignored the State’s protests and vowed to proceed with its translocation plan with or without state approval. The injunction was the only thing protecting the State from harm. But that protection disappeared with the Tenth Circuit decision. Now the State and the Service will continue their fight in court to determine whether the Service is bound by federal and state law to comply with state permit requirements when releasing nonessential experimental populations into the wild.  The issue is acute when the experimental population involves an apex predator like wolves that prey on wildlife and domestic livestock, and put people at risk, creating a public danger.