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Can a shaky conservation plan protect Washington's wolves?

— filed under:
By Daniel Jack Chasan
Crosscut

The latest on the Washington state wolf plan: While Conservation Northwest's Derrick Knowles thinks that elk hunters' fears are based largely on fantasy, he says that ranchers have "some legitimate concerns," although experience in the Rockies suggests that "wolves take out way fewer livestock than domestic dogs."

Through a series of political machinations, Congress has taken gray wolves in Idaho, Montana, Utah, and parts of Oregon and Washington off the endangered species list. Will a new state plan go far enough to protect the Washington population?

They're shooting wolves again in Idaho and Montana, but in Washington we're still trying to figure out how to save them. Gray wolves, hunted to extinction in Washington before World War II, walked back across the borders from British Columbia and Idaho on their own. But if we want them to stick around for future generations, they'll need our forebearance — which the proposed state wolf management plan, currently going through a round of public hearings may — or may not — insure. The state Fish and Wildlife Commission will turn thumbs up or down in December.

Some people think the plan goes too far. Others think it doesn't go far enough.

Five years ago, there was no need for a wolf management plan because — as far as anybody knew — there were no wolves. People had periodically claimed to see or hear them, and finding tracks in the mud beside Ross Lake became an annual event, but there was no evidence that a pack had established itself within the state. Then, in 2008, biologists identified the Lookout Pack, breeding in the Methow Valley. By now — with two new packs identified earlier this year — there are five.

"As of July 2011, there were five confirmed packs in Washington," the management plan explains: "two in Pend Oreille County; one in Stevens/Pend Oreille counties; one in Kittitas County; and one in Okanogan/Chelan counties. Only one of these, in Pend Oreille County, was a successful breeding pair in 2010. There were also indications of single additional packs in the Blue Mountains and North Cascades National Park; and at least a few solitary wolves are also likely to occur in other scattered locations of Washington. Human-related mortality, particularly illegal killing and legal control actions to resolve conflicts, is the largest source of mortality for the species in the northwestern United States and illegal killing has already been documented in Washington."

When the state planning process started, gray wolves were protected as a federally listed species throughout the West. The government initially tried to delist all wolves in the northern Rockies, including the main populations in Montana, Idaho, and Wyoming. All three states had drawn up management plans. Wyoming's was clearly inadequate, so conservationists got an injunction against delisting. The Wyoming government subsequently asked for and received a voluntary remand, so that it could revise the proposal.

In 2009, the feds tried again. They left Wyoming's wolf population on the list. The U.S. Fish and Wildlife Service issued an order delisting gray wolves in Idaho and Montana, plus eastern Washington, eastern Oregon, and Utah. Last year, U.S. District Judge Donald W. Molloy vacated the order, saying it violated the Endangered Species Act. He didn't reach the substantive issues that the plaintiffs had raised about the criteria for wolf recovery, but he didn't have to. The feds couldn't delist a population in only part of its range. “The record in this case implies that the Service tried to find a pragmatic solution to the legal problem raised by the inadequacy of Wyoming's regulatory mechanisms,” Molloy wrote. However, he added, “[e]ven if the Service's solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA.”

The losing side appealed the ruling to the 9th Circuit. Politicians pandering to anti-wolf sentiment weren't willing to entrust the issue to the courts. No one expected a decision before next year, but delisting bills started popping up in Congress last year. This year, the delisting movement gathered steam. The plaintiff groups that had won in Molloy's court could see a legislative solution coming down the tracks, and many of them tried to avoid it through a negotiated settlement. Ten of the fourteen plaintiffs signed onto a settlement that basically suspended Molloy's order in Idaho and Montana. They hoped to avoid the precedent of a Congressional delisting, and hoped to salvage protection for wolves in eastern Washington, eastern Oregon, and Utah.

It didn't work. Molloy rejected the deal. Because not all the plaintiffs were on board, he reasoned, the settlement would damage their interests. And it wouldn't really halt the underlying litigation. And it would permit takings of an endangered species in violation of the Endangered Species Act. Molloy said that "the Court is being asked to make a novel equitable determination: that the wolves of Idaho and Montana are legally endangered, but it would be more equitable to not protect them as such so that they could be taken under the states’ management plans." He explained that "[i]n essence, the Settling Parties are asking the Court to shape a remedy 'that accords with some modicum of common sense and the public weal,' and ignore Congress’ instruction on how an endangered species must be protected."

With settlement off the table, there was no way to avoid Congressional action. A rider to the April law that avoided a government shutdown by authorizing federal expenditures for the rest of the last fiscal year proclaimed that "the Secretary of the Interior shall reissue the final rule published on April 2, 2009.… Such reissuance… shall not be subject to judicial review."

That was that. The Secretary of the Interior reissued the rule. Molloy had no choice. But he wasn't happy about it. "The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law," he wrote.

"The principle behind the rule of law is to provide a mechanism and process to guide and constrain the government’s exercise of power. Political decisions derive their legitimacy from the proper function of the political process within the constraints of limited government, guided by a constitutional structure that acknowledges the importance of the doctrine of Separation of Powers. . . . Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution by avoiding the very debate on issues of political importance said to provide legitimacy."

Some people figured Molloy was giving wolf advocates a blueprint for an appeal. “The Separation of Powers requires us to discern the difference between arguments of policy and arguments of principle," he wrote. "It is the function of Congress to pursue arguments of policy and to adopt legislation or programs fostered by recognizable political determinations. It is the function of the courts to consider arguments of principle in order to enforce a statute, even if the statute itself stems from an altered policy. This distinction holds true, even when the legislative process employed involves legislative prestidigitation.”

Idaho's wolf hunt started on August 30, Montana's on September 3. Wyoming, where wolves remain listed, has been talking with the feds about a wolf management plan that would simply allow people to shoot them on sight in much of the state.

The delisting order took all wolves in eastern Washington off the list. West of Highway 97, where it runs north along the Columbia and Okanogan rivers, they're still a federally protected species. East of the highway, they've lost all federal protection. On both sides of the highway, however, wolves remain protected under state law.

That's where the state wolf plan comes in. The first thing to remember about the plan is that it's not just about wolves. It is also about protecting ranchers, not pissing off elk hunters, and not offending public sensibilities. The first listed goal is, indeed, "[r]estor[ing] the wolf population in Washington to a self-sustaining size and geographic distribution that will result in wolves having a high probability of persisting in the state through the foreseeable future (>50-100 years)." Three others include "[m]anag[ing] wolf-livestock conflicts in a way that minimizes livestock losses." "maintain[ing] healthy and robust ungulate populations," and "[d]evelop[ing] public understanding."

"Recovery" will be achieved when there are 15 breeding pairs distributed among three recovery areas. (Fifteen breeding pairs doesn't mean only 30 wolves. According to the plan, it translates to anywhere from 97 to 365.) Ranchers will get compensated for any known or probable wolf kills. For a known kill, they'll get double the dead animal's market value. For a probable kill, they'll still get full value. Ungulate populations — aka deer and elk — will be monitored and managed, but basically, the state won't rush to head off an illusory threat. "As wolf numbers increase in Washington," the plan says, "there may be localized impacts on ungulate abundance or habitat use. Improved habitat management, flexibility in harvest strategies, and greater prevention of illegal hunting are recommended as measures for sustaining healthy ungulate populations that will support wolves and maintain harvest opportunities. Management options are included to address wolf predation on ungulates if they are found to be a primary limiting factor for an at-risk ungulate population."

A big question at the start was whether or not the Olympic Peninsula would become a separate recovery zone, and whether or not wolves would be reintroduced there from outside. But the final plan lumps the peninsula in with the rest of southwest Washington and the coast. Therefore, wolves can be delisted without ever reaching the Olympics.

Why do some people think the Olympics matter? The peninsula contains a lot of habitat and a lot of prey. Plus, a 2008 study suggests, the health of the rivers on which all those threatened and endangered salmon populations depend may require wolves. The study, by Oregon State University scientists Robert L. Beschta and William J. Ripple, found that since wolves were rubbed out around the turn of the last century, young cottonwoods had pretty much stopped growing along the river banks. As a result, the banks had eroded, and the rivers had become broader and shallower. Beschta and Ripple hypothesized a "trophic cascade:" the absence of wolves allowed elk to proliferate; the big browsers munched down the young trees — just as they did in Yellowstone before wolves were re-introduced — and without young trees to hold the soil, the banks got worn away, changing the shapes of the rivers.

The obvious way to reverse this process would be to bring back the wolves. But that would be controversial, too, and the state planners didn't go there.

The plan was a compromise. It represents a document on which people representing a range of interest groups — including the state farm bureau — have signed off. There's something to be said for consensus.

Of course, not every last potential opponent was at the table, and some people out there think even 15 breeding pairs sounds like too many. Like opponents in other parts of the West, they worry that wolves will kill or harass livestock (or at least make them wary, which may take their minds off eating enough to slow their weight gain) and kill or harass elk (or at least make them wary, too, which may make them harder to shoot). Some people worry that wolves will actually destroy or seriously deplete elk populations.

Experience elsewhere suggests that except for very localized effects on populations already in trouble, this is largely fantasy. "The effects that wolves will have on elk, deer, and other ungulate populations and hunter harvest are difficult to predict," the plan says, "but observations from neighboring states suggest that statewide effects will be low, especially during recovery phases."

Most elk hunters realize that the effects will probably be low, says Derrick Knowles, who has represented Conservation Northwest on the wolf advisory committee. However, there's a small number "whose opposition is based largely on some myths. I'm an elk hunter," Knowles says. "I associate with people who fall into both camps."

While Knowles thinks that elk hunters' fears are based largely on fantasy, he says that ranchers have "some legitimate concerns," although experience in the Rockies suggests that "wolves take out way fewer livestock than domestic dogs." Still, people act on their fears and resentments. "The Washington Cattlemen were on board through most of the process, but went south near the end," notes one close observer, "as did the rank and file elk hunters, after the Molloy rulings sent chills."

Conservationists have mostly stayed on board, albeit with some reservations. The National Parks Conservation Association, the North Cascades Conservation Council, Olympic Park Associates, the Olympic Forest Coalition, and the North Olympic Group of the Sierra Club said in a press release that they were "disappointed in this revised draft plan." They explained that "[a]ccording to the scientific reviewers, the population recommendations in the draft plan are not biologically defensible and will not ensure the 'reestablishment of a self-sustaining population of gray wolves in Washington.'”

"The plan states that the recovery goal of 15 successful breeding pairs is below that thought needed for long-term persistence of an isolated population," one of the reviewers wrote. "Yet, [it] then [goes on] to state that 15 breeding pairs is believed to be sufficient to result in the reestablishment of a self-sustaining recovered wolf population. These 2 statements are in conflict. . . . With these statements so contradictory . . . it seems that the plan needs to clearly state how 15 breeding pairs was determined. Since [it] states that biologically 15 breeding pairs are not viable or sustainable, then the choice of 15 pairs must have been a political choice or compromise. If this is indeed the case, then the state should clearly state this as so, and remove language stating they plan to have a self-sustaining viable population. . . . If in fact the state does want to have a self-sustaining and viable wolf population, then the recovery level needs to be higher."

Noting the critical peer reviews, David G. Graves, Northwest Program Manager of the National Parks Conservation Association, says flatly, "that is not a sustainable population."

We "wish the recovery goal was a bit higher than the 15 pairs," says Conservation Northwest executive director Mitch Friedman, but "we generally stand by the plan and the process."

Graves says much the same thing. Although his group has criticized the numbers and the lack of a separate recovery area in the Olympics, "we will still support the plan," he says. "It could have been a lot worse."

The Fish and Wildlife Commission could still make it worse, in Graves' opinion. And it's not clear that all the commissioners will examine the plan with unbiased eyes. At a late-August hearing in Ellensburg,"Gary Donna, the commission vice chair from Kettle Falls, questioned how Washington can have similar objectives for successful recovery of wolves as Idaho and Montana, when Washington has a much higher population and 'a third of the habitat,' Shannon Dininny reported in The Seattle Times. "'I still wonder how we're going to be successful against those odds,' he said."

Some conservationists claim that Donna has been trying to pack the hearings with wolf opponents. Others concede that both sides have been trying to pack them. Either way, the commission's attitude will be vital. And the commission isn't operating at full strength. Governor Chris Gregoire, who wanted to abolish it as part of an abortive plan to save money and streamline government (she hoped this year's legislature would consolidate the departments of Fish and Wildlife, and Parks and Recreation, the Recreation and Conservation Office and the law enforcement unit of the Department of Natural Resources into a new Department of Conservation and Recreation), hasn't filled a couple of vacancies.

The commission may have a low priority in Olympia, but when it decides on the wolf plan, the stakes will be high. Now that the federal government has delisted wolves in the eastern third of the state, it is conducting a status review of wolf populations in Washington, Oregon, and northern California, which may conceivably lead to a delisting in the remaining two-thirds. Perhaps before long, the state plan will be all that stands between Washington's wolves and a trip back toward local extinction. In eastern Washington, it's already all they have. If there's a broader delisting, "there is a lot riding on [this plan]," Graves says.

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