The 2008 10(j) rule violates the Endangered Species Act and the National Environmental Policy Act.
Now that wolves have been placed back on the list of endangered species a lawsuit, which was filed before delisting was proposed, is now able to proceed. The groups are challenging the 2008 10(j) rule change which lowered the bar to allow states to kill wolves for causing “unacceptable impacts” to ungulate populations if they can show “only that a wild ungulate population is failing to meet state or tribal management objectives – however defined by the states – and that
wolves are one of the major causes for that failure.” The previous 10(j) rule defined “unacceptable impact” as a “decline in a wild ungulate population or herd, primarily caused by wolf predation, so that the population or herd is not meeting established State or Tribal management goals.” The USFWS felt that the states could not show that to be the case and, without proper review, changed the regulations to give the states more flexibility to kill wolves.
The plaintiffs’ brief was filed on August 20, 2010 and there are two basic claims in the litigation.
I. THE 2008 10(j) REGULATION VIOLATES THE ESA’S CONSERVATION MANDATE
__A. The ESA Imposes A Duty To Conserve Threatened And Endangered Species
__B. The 2008 10(j) Regulation Impairs, Rather Than Serves, Wolf Conservation
II. THE 10(j) REGULATION VIOLATES NEPA
__A. FWS Unlawfully Predetermined The Outcome Of Its NEPA Analysis
__B. The Environmental Assessment Violates NEPA Because It Does Not Take A “Hard Look” At The Environmental Consequences Of The 10(j) Regulation
__C. The 10(j) Regulation May Have Significant Environmental Effects, Thus Requiring The Preparation Of An EIS
____1. FWS arbitrarily underestimated impacts to wolves
____2. Potential wolf killing under the 10(j) regulation is a significant environmental impact
This litigation is particularly timely as Idaho is preparing a proposal to kill 80% of the wolves in Lolo units 10 and 12 because the elk populations have not been meeting the IDFG’s 1999 objectives since the winter of 1996/1997. Those elk objectives are wildly optimistic and fail to consider the habitat declines which started in the 1970’s and continue to this day. The comment period for that proposal concluded yesterday, August 30.