The 2006 Memorandum of Agreement has EXPIRED.
The State of Idaho and Wildlife Services have been operating outside of the law since relisting has occurred. It appears that the State of Idaho has no management authority over wolves now that they have been re-listed under the ESA. This is evidenced by the Memorandum of Agreement (MOA) between the Secretary of Interior and the State of Idaho dated January 5, 2006 which hands over lead management authority over wolves to the State of Idaho. This agreement has expired. In addition, wolves have been relisted, and there is no valid section 10j MOA existing, at least which has been made public, which grants the State of Idaho management authority over wolves.
Update late 9/28. By Ralph Maughan. Today I called Ed Bangs about this. We had a brief conversation. He said that yes the MOA had expired, but the whole thing had been taken care of. He asked me to call Brian Kelly of USFWS in Boise for the “whole spiel.” Brian Ertz called Kelly’s office a number of times, but Kelly did not answer, nor call back. So we are yet to gain any information.
Update 9/29. By Ken Cole
I spoke to Brian Kelly, the new state State Supervisor Of Idaho USFWS Office, today about the issue at hand and he confirmed that there is no MOA but that the 2005 10(j) rule covers them and designates Idaho management authority. From the language I found on page 1291 of the 2005 10(j) rule I don’t see anything which does this. Essentially this says that an MOA with the Secretary of the DOI allows the state to manage wolves but the MOA has expired.
Response 3–3: The completion of an MOA with the Secretary of the DOI which is consistent with this rule allows a State or Tribe to take the lead in wolf management, to become ‘‘designated agent(s),’’ and to implement all parts of its approved wolf management plan that are consistent with this rule. This includes issuing written authorization for take, and making all decisions regarding implementation of the State or Tribal plan consistent with this rule. Under the MOA process, the Service will annually review the States’ and Tribes’ implementation of their plans to ensure compliance with this rule and to ensure the wolf population remains above recovery levels. States and Tribes also can become ‘‘designated agent(s)’’ and implement all or selected portions of this rule by entering into a cooperative agreement with the Service.
Furthermore, Section 6 of the ESA indicates that the DOI may enter in to a cooperative agreement with the states but management authority rests with, in this case, the USFWS otherwise.
Simply having an approved management plan is not adequate to grant a state lead management authority, an MOA is required.
From the ID Wolf 10j MOA FINAL_10506:
V. PERIOD OF PERFORMANCE
This agreement is effective through March 2010, unless terminated or wolves are delisted. This agreement may be terminated by either party after 90 days written notice in accordance with the 10(j) rule.
From our reading of the Endangered Species Act, it appears that such an agreement is required before the states can participate in management of an experimental, non-essential endangered species and, without such an agreement, the State of Idaho has no authority to manage wolves now that they are back on the Endangered Species list as section 10(j) animals.
Since relisting has occurred, there have been at least 4 instances whereby the IDFG has issued control orders, without apparent management authority, which have resulted in the death of at least 6 wolves. There may have been many more because it is hard to get these numbers since the IDFG does not release information about its wolf management very often and hasn’t done so since June of this year.
Recently Governor Otter announced that he would hand back authority to manage wolves back to the USFWS if there wasn’t a new agreement by October 7 of this year. But, is it his to hand back?
Is the State of Idaho and the US Fish and Wildlife Service aware of this? Well, during the last meeting of the IDFG commissioners the subject of the expired MOA came up. This shows that they are well aware of this lack of authority but there seems to be no attempt at clarifying any interim agreement while a new MOA is being negotiated. In the meantime the IDFG seems to be shooting from the hip and issuing control orders without legal authority.
It should be of concern when the government acts arbitrarily and it should be of concern to reasonable people who believe in the rule of law.