Thanks to the non-paywalled Cowboy State Daily...here’s the link.
Wolves that cross the border from Colorado into Wyoming may be shot on sight, and it’s up to the U.S. Forest Service to stop it, an environmental group claims.
The Center For Biological Diversity plans to file a lawsuit against the Forest Service in U.S. District Court unless the agency steps up to protect the wolves. That’s what the group claims in a letter sent to USFS and U.S. Department of Agriculture officials. The Forest Service falls under the USDA’s jurisdiction.
The possible lawsuit may initially seem like a legal dead end, because the Forest Service doesn’t manage wolves.
The Wyoming Game and Fish Department has jurisdiction over wolves in Wyoming, and the Colorado Parks and Wildlife Department is primarily in charge of the growing wolf population in that state.
But the Forest Service does have authority to shut down wolf hunting in its jurisdiction – and indeed already has shut down prairie dog shooting in parts of Wyoming, the Center for Biological Diversity claims in its letter.
In the case of wolves, the group argues that the Forest Service should declare a no-kill zone on the Medicine Bow-Routt National Forest, headquartered in Laramie.
Center for Biological Diversity attorney Collette Adkins told Cowboy State Daily on Thursday that she couldn’t discuss the pending case in detail. However, she affirmed the group’s stance on the Forest Service having authority to stop hunting in some instances.
“That’s not a question at all, and forest supervisors do that regularly for various reasons, including for protecting an endangered species,” she said.
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Despite not having any wildlife management authority in Wyoming, the Forest Service still has authority to ban the killing of wolves on the Medicine Bow-Routt National Forest, thus giving them at least some degree of protection, the Center for Biological Diversity claims.
The agency has been negligent in that regard, the group says.
“The U.S. Forest Service has not issued any orders to close wolf hunting or trapping or otherwise protect wolves on the Medicine Bow-Routt National Forest,” the group’s letter states. “Nor does the Land and Resource Management Plan for the Medicine Bow-Routt National Forest have any standards or guidelines aimed at conserving wolves.
“In fact, the Forest Plan, developed in 2003, includes no mention of wolves at all.”
I wonder if that’s because there were not wolves there then?
Here’s the FS side on the prairie dog shooting question..
The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.
“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”
Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.
However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.
The Forest Service has shut down prairie dog shooting and should be able to do the same for wolves, the Center for Biological Diversity argues.
“As just one example of the Forest Service’s use of this authority to prohibit hunting, the Forest Supervisor has ordered a seasonal closure of prairie dog hunting on Thunder Basin National Grassland,” the letter states. “The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.”
Forest Service spokesman Aaron Voos recently told Cowboy State Daily that the agency implements seasonal closures of prairie dog shooting in some parts of the national grassland.
However, that’s not to protect the burrowing critters from being shot. Rather, it’s to protect raptors and other wildlife that feast on perforated prairie dog carcasses from getting lead poisoning from bullet fragments.
This topic could inspire…
First question is whether FS “must” or “may” take measures to protect wolves. I vote “Yes” for may. I think a clear case can be made that wolf presence affects all manner of habitat factors, for which FS has authority. But “must” is a high legal bar. If discretionary (like keeping lead in prairie dogs from scavengers), the FS can always say they decided not to do anything. But I’d like the FS CHOOSE to do something constructive for wolves, in keeping with general federal policies.
The obligation comes from §7(a)(1) of ESA, which per the complaint, “provides an “affirmative duty” for federal agencies to conserve listed species. It provides that all federal agencies “shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed . . . .” U.S.C. § 1536(a)(1). The ESA defines “conservation” to mean “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” 16 U.S.C. §1532(3).” https://www.biologicaldiversity.org/campaigns/gray_wolves/pdfs/CO-border-wolves-NOI-02-22-23.pdf
I agree that this is a high legal bar. This section of ESA has not been litigated much, and it is hard to make an agency do something.
The NOI also discusses the forest plan: “It is our understanding that the Forest Service has not complied with these (ESA) requirements for endangered wolves found on or near the Medicine Bow-Routt National Forest. The Forest Plan includes no mention of wolves, and the Forest Service produced no records documenting a conservation program for endangered wolves. This likely constitutes the “total inaction” that courts hold plainly violates an agency’s duty to conserve. To comply, the Forest Service must consult with the U.S. Fish and Wildlife Service about how to promote the survival and recovery of endangered wolves on the Forest.”
There is arguably such a thing as §7(a)(1) consultation, and they may have to reinitiate §7(a)(2) consultation on the forest plan as well; I’m not sure the appropriations rider (Cottonwood) eliminates this requirement for new presence of a listed species on a national forest. However, they have not specifically alleged a violation of this requirement of §7(a)(2) in their NOI. While the NOI directly alleges a violation of ESA §7(a)(1), it also discusses NFMA’s diversity requirement. They could also still bring an NFMA claim related to failure of the forest plan to promote recovery of a listed species (no notice of intent is required for NFMA).
“The Forest Service’s authority to restrict hunting on national forests has been repeatedly confirmed in the courts.” Yes.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2980807