* Managing Editor, 1999–2000, Boston College Environmental Affairs Law Review. This article is dedicated to Storm and Ajah, descendants of canis lupus. The author would like to thank her husband, James, for his unending support, understanding, and humor during the writing of this Comment.
1 Bruce Babbitt, Between the Flood and the Rainbow: Our Covenant to Protect the Whole of Creation, 2 Animal L. 1, 1 (1996) (adapted from Secretary Babbitt’s speech at the Consumption Population Conference in Weston, Massachusetts, on Nov. 11, 1995).
2 See R.D. Lawrence, Trail of the Wolf 120 (1993).
3 Id.
4 See id. at 128; Inga Haagenson Causey, The Reintroduction of the Wolf in Yellowstone: Has the Program Fatally Wounded the Very Species it Sought to Protect?, 11 Tul. Envtl. L.J. 461, 462 (1998).
5 See Nancy Gibson, Wolves 52 (1996).
6 See Lawrence, supra note 2, at 120, 122; Causey, supra note 4, at 462.
7 See Gibson, supra note 5, at 54.
8 Causey, supra note 4, at 462.
9 Craig E. Enochs, Gone Today, Here Tomorrow, 4 Hastings W.-N.W. J. Envtl. L. & Pol’y 91, 98 (1997).
10 See National Wildlife Federation, Wolf Facts (visited Jan. 26, 2000) <http:// www.nwf.org/nwf/wolves/wolffacts.html>; Rocky Barker, War on Wolves was Fierce, Cruel, Post Register, Jan. 15, 1995 (visited Nov. 24, 1998) <http://www.idahonews.com/ wolfw8war.htm>. The United States government hired three hundred full-time hunters and trappers for predator control and offered bounties to wolf killers. Hunters poisoned wolves, shot them, dragged pups from dens, and even used biological warfare against them (veterinarians introduced sarcoptic mange into the wolf population to weaken and kill it). As a result, the wolf had disappeared from the Great Plains by 1926 and from Washington, Colorado, and Wyoming by 1943. Montana reported that between 1883 and 1918, approximately 80,730 wolves were killed in that state alone. See Causey, supra note 4, at 462; Barker, supra.
11 See Lawrence, supra note 2, at 123. Some historians have noted that fairy tales like “Little Red Riding Hood” and “The Three Little Pigs” have contributed to the negative view humans have of wolves. See id.
12 See Yellowstone National Park Act, ch. 24,  1, 17 Stat. 32 (1872) (codified as amended at 16 U.S.C.  21 (West 1992)).
13 Id. ch. 24,  2 (codified as amended at 16 U.S.C.  22 (West 1992)).
14 See Endangered Species Act, 16 U.S.C.  1531–1544 (1973 & Supp. 1996).
15 See id.  1539(j)(1).
16 See Wildlife and Fisheries, 50 C.F.R.  17.84(i) (1994).
17 See National Wildlife Federation, Historical Timeline of Wolf Reintroduction (visited Feb. 27, 1999) <http://www.nwf.org/wolves/timeline.html> [hereinafter Historical Timeline of Wolf Reintroduction].
18 See Thomas McNamee, The Return of the Wolf to Yellowstone 33 (1997).
19 See Robert C. Moore, The Pack is Back: The Political, Social, and Ecological Effects of the Reintroduction of the Gray Wolf to Yellowstone National Park and Central Idaho, 12 T.M. Cooley L. Rev. 647, 652–53 (1995).
20 See Kevin J. Madonna, The Wolf in North America: Defining International Ecosystems vs. Defining International Boundaries, 10 J. Land Use & Envtl. L. 305, 312 (1995); Historical Timeline of Wolf Reintroduction, supra note 17.
21 See Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1229 (10th Cir. 2000); Madonna, supra note 20, at 313.
22 See Yellowstone Park Act, ch. 24,  2, 17 Stat. 33 (1872) (codified as amended at 16 U.S.C.  21 & 22 (West 1992)).
23 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1229-30.
24 See generally id.; see also United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999) (criminal case in which defendant challenged the validity of the wolf reintroduction program after being charged with illegally killing and transporting a protected wolf).
25 See Jim Dutcher & Richard Ballantine, The Sawtooth Wolves 48 (1996); Lawrence, supra note 2, at 45. The other relatives often include the siblings of the alpha pair. Occasionally, a pack will accept distantly related wolves from neighboring packs. See Lawrence, supra note 2, at 45.
26 See Dutcher & Ballantine, supra note 25, at 48–49.
27 Id. at 46.
28 See id. at 49.
29 See id. An aging alpha male may be unable to hold his position against a strong, young beta male, and may be deposed to a lower position within the pack. This is not a source of humiliation, but instead simply a changing of roles as a wolf ages. See id.; Lawrence, supra note 2, at 45.
30 See Dutcher & Ballantine, supra note 25, at 49.
31 See id.
32 See id. at 48–49.
33 See id. at 49.
34 See id. at 50.
35 See Dutcher & Ballantine, supra note 25, at 49. This is one area where wolf behavior differs from that of humans. The alpha pair eat first because they are, by definition, the strongest, healthiest wolves in the pack, and their survival is vital to the continuation of the pack. See id.
36 See id. at 50.
37 See id. at 49. Such exclusive breeding is maintained to preserve the size and integrity of the pack. In addition, natural selection dictates that only the strongest members of the pack be permitted to reproduce. On rare occasions, the beta female may be permitted to reproduce. See id. at 112.
38 See id. at 49.
39 See id.
40 See Dutcher & Ballantine, supra note 25, at 49; Gibson, supra note 5, at 10.
41 See Dutcher & Ballantine, supra note 25, at 49, 59, 62.
42 See id. at 59, 62.
43 See id. at 49, 62.
44 See id. at 49, 55.
45 See id. at 55.
46 See Dutcher & Ballantine, supra note 25, at 49. This is with the exception of the pups. Pups are subordinate to every other member of the pack, including juveniles, but are neither above nor below the omega. See id.
47 See id. at 55, 144–45.
48 See id. at 55.
49 See id. at 49, 55.
50 See id. at 55.
51 See Dutcher & Ballantine, supra note 25, at 55.
52 See id. at 36.
53 See id.; Lawrence, supra note 2, at 45.
54 Dutcher & Ballantine, supra note 25, at 26.
55 Id.
56 See Lawrence, supra note 2, at 42.
57 Id.
58 See Dutcher & Ballantine, supra note 25, at 32, 90–91, 113.
59 See id. at 145, 147; Gibson, supra note 5, at 15; Lawrence, supra note 2, at 46.
60 United States Fish & Wildlife Service, Gray Wolf (canis lupus) (visited Mar. 2, 1999) <http://www.fws.gov/r9extaff/biologues/bio-gwol.htm> [hereinafter Gray Wolf].
61 See id.
62 See id.
63 See McNamee, supra note 18, at 107. In addition, many other animals, including ravens, foxes, wolverines, and even bears survive off the remains of wolf kills. See Gray Wolf, supra note 60.
64 See id.
65 See id.
66 See id.
67 See id.
68 See McNamee, supra note 18, at 107.
69 See Endangered Species Act, 16 U.S.C.  1531(c) (1973 & Supp. 1996).
70 Id.  1532(6).
71 Id.  1532(20).
72 Id.  1531(b).
73 Id.  1531(c)(1).
74 See 16 U.S.C.  1531(b).
75 See id.  1531(c)(1).
76 See id.  1531(c).
77 See id.  1539(j).
78 Id.  1539(j)(2)(A).
79 16 U.S.C.  1539(j)(1); see also Wildlife and Fisheries, 50 C.F.R.  17.80(a) (1994).
80 See 16 U.S.C.  1539(j)(1).
81 Id. (emphasis added).
82 See id.
83 See 50 C.F.R.  17.82.
84 See id.
85 See id.
86 See id.
87 See 16 U.S.C.  1539(j)(2)(B).
88 Note that, by definition, all reintroduced species are experimental. See id.  1539(j)(1). Any nonexperimental population is already protected by the ESA, and even the Secretary has very limited control over it. See id.; see also 50 C.F.R.  17.80(a).
89 See 16 U.S.C.  1539(j).
90 50 C.F.R.  17.80(b).
91 See id.
92 See id.  17.83.
93 See id.
94 See Unites States v. McKittrick, 142 F.3d 1170, 1174 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999); Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1233 (10th Cir. 2000). See also H.R. REP. NO. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833.
95 See McKittrick, 142 F.3d at 1174; Wyoming Farm Bureau Fed’n, 199 F.3d at 1232-33. See also H.R. REP. NO. 97-567, at 33.
96 See 50 C.F.R.  17.84(i).
97 See Barker, supra note 10.
98 See Gibson, supra note 5, at 56.
99 See id. at 68; Lawrence, supra note 2, at 146. The Southeastern United States was inhabited primarily by the red wolf, a different species than the gray wolf. The red wolf formerly occupied a vast range, stretching from Florida to Pennsylvania and from central Texas and Oklahoma to the Eastern seaboard. Due to the massive wolf killings of the nineteenth and early twentieth centuries, the red wolf is now endangered and occupies only a tiny area on North Carolina’s Atlantic coast. See Lawrence, supra note 2, at 149 (illustration).
100 See Gibson, supra note 5, at 68.
101 See Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1353 (D. Wyo. 1997), rev’d, 199 F.3d 1224 (10th Cir. 2000). In 1986, however, a wolf den was discovered in Glacier National Park in Montana, which has since grown to about seventy wolves. It should be noted that FWS did acknowledge to the district court in Wyoming Farm Bureau Federation v. Babbitt that as the number of naturally occurring wolves in Montana increases, these wolves will naturally recolonize areas of Idaho and Yellowstone Park. See id.
102 See Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1228 (10th Cir. 2000); Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical habitat in Michigan and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978).
103 See 43 Fed. Reg. at 9610, 9612; see also Wyoming Farm Bureau Fed’n, 199 F.3d at 1228.
104 See Endangered Species Act, 16 U.S.C.  1533(f) (1973 & Supp. 1996); Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1353. Section 1533(f)(1) imposes on the Secretary an affirmative duty to “develop and implement plans . . . for the conservation and survival of endangered species and threatened species.” 16 U.S.C.  1533(f)(1).
105 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1353.
106 See Moore, supra note 19, at 652–53; Timothy B. Strauch, Holding the Wolf by the Ears: The Conservation of the Northern Rocky Mountain Wolf in Yellowstone National Park, 27 Land & Water L. Rev. 41, 45 (1992).
107 See Strauch, supra note 106, at 45.
108 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1353–54.
109 See id. at 1354.
110 Id.
111 See id.
112 See Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1228 (10th Cir. 2000); Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 6025460255, 60266, 60269 (Nov. 22, 1994).
113 See National Environmental Policy Act, 42 U.S.C. 4321–4370(e) (1970); Plater, et al., Environmental Law and Policy: Nature, Law, and Society 612–13 (1998).
114 Plater, et al., supra note 113, at 612.
115 See id.
116 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1354.
117 McNamee, supra note 18, at 36.
118 See id.
119 Id.
120 See id. at 37.
121 See id. at 38.
122 See Gibson, supra note 5, at 61; McNamee, supra note 18, at 38.
123 See Gibson, supra note 5, at 61.
124 McNamee, supra note 18, at 41.
125 Id.
126 See id. at 39.
127 Gibson, supra note 5, at 61.
128 See id.
129 See id.; McNamee, supra note 18, at 45.
130 See McNamee, supra note 18, at 40.
131 See id.
132 See id. at 40–43.
133 See Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1354 & n.6 (D. Wyo. 1997), rev’d, 199 F.3d 1224 (Jan. 13, 2000).
134 See Endangered Species Act, 16 U.S.C.  1539(j) (1973 & Supp. 1996); Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1228-29 (10th Cir. 2000).
135 See Wildlife and Fisheries, 50 C.F.R.  17.80 (1994).
136 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1354.
137 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1229; 50 C.F.R.  17.84(i). In accordance with NEPA, FWS conducted rule-making hearings prior to adopting the final rules at which the public, including the farm bureaus and ranchers, were welcome to comment. See McNamee, supra note 18, at 47. As it turned out, unlike the early hearings, very few people showed up at any of the final rule-making hearings, and even fewer made comments expressing any concern with the final wolf reintroduction rules. See id.
138 See Wyoming Farm Bureau Fed’n., 199 F.3d at 1229. Secretary Babbitt is an ardent supporter of the gray wolf reintroduction program and was given the honor of releasing the first reintroduced wolf into Yellowstone National Park. See Babbitt, supra note 1, at 1.
139 See McNamee, supra note 18, at 55.
140 See Babbitt, supra note 1, at 1. The wolves were actually captured a few days before release. In a true last-ditch effort, the Mountain States Legal Foundation appealed to the Tenth Circuit in Denver, seeking an emergency stay. The Tenth Circuit stayed release of the wolves, who by that time had already arrived at Yellowstone, for forty-eight hours while the court considered the matter. The wolves were forced to remain caged in their small traveling pens for nearly thirty-eight hours, without any real access to food or water. The Tenth Circuit finally lifted the stay and the wolves were released. See McNamee, supra note 18, at 65–67, 84, 86–87.
141 See generally Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1354.
142 See McNamee, supra note 18, at 217.
143 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1370.
144 See id. at 1376.
145 See id.
146 See id. at 1355.
147 Id. (citing Farm Bureaus’ First Amended and Supplemented Complaint  4–6).
148 Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1355 (quoting Farm Bureaus’ First Amended and Supplemented Complaint  4–6).
149 See id. at 1356.
150 See id.
151 See id. at 1356 n.11.
152 See id. at 1356.
153 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1356; McNamee, supra note 18, at 217.
154 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1357.
155 See id. at 1358.
156 All three independent sets of plaintiffs will hereinafter be referred to collectively as “plaintiffs.”
157 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1355.
158 See id. at 1368.
159 See id.
160 See id.
161 See id.
162 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1353 & n.1, 1369.
163 See id. at 1368.
164 Id. at 1369 (quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994)).
165 See id.
166 See id. at 1355.
167 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1370.
168 See id.
169 See id. at 1370; Endangered Species Act, 16 U.S.C.  1539(j)(2)(A) (1973 & Supp. 1996).
170 Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1371.
171 See id.
172 See id. at 1370–71.
173 See id. at 1372.
174 See id. at 1355.
175 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1355. The lack of ESA protection for naturally occurring wolves was the primary concern of the environmental plaintiffs. See id.
176 See id. at 1370.
177 See id.
178 See id. at 1370, 1373.
179 See id. at 1372.
180 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1372.
181 Id.
182 See id. at 1372, 1375.
183 See id. at 1376.
184 Id.
185 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1376.
186 See 142 F.3d 1170, 1172 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999).
187 Number Ten was called “the pride of Yellowstone.” See Thomas McNamee, The Killing of Wolf Number Ten, Outside, May 1997 (visited Mar. 2, 1999) <http://outside.starwave.com/magazine/0597/9705wolf.htm>. He was the largest and boldest of the fourteen original wolves released into Yellowstone in January 1995. See id. He was a 122-pound gray and white wolf and was described as possessing “a calm, a quiet, a confidence.” Id. His magnificence and fearless manner preordained him as an Alpha male. See id.
188 See id. Number Nine was equally as magnificent as her mate, Number Ten, and was the first wolf to be released into Yellowstone Park in January 1995 (described earlier in this Comment). See id. Great hopes for the survival of gray wolves in the United States were pinned on this alpha pair. See id.
189 See id. Number Nine’s pups were also very important to the wolf recovery team since they were to be the first litter born of the experimental population since reintroduction began. See id.
190 See id. McKittrick was trespassing on private land in his pursuit of hunting black bears, and did not have permission to be in the area. See id.
191 See id.
192 See McNamee, The Killing of Wolf Number Ten, supra note 187.
193 See id.
194 Id.
195 Id.
196 See United States v. McKittrick, 142 F.3d 1170, 1172 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999).
197 See id.
198 See id. at 1173.
199 See id.
200 Id.
201 See McKittrick, 142 F.3d at 1179.
202 See id. at 1173.
203 See McNamee, supra note 18, at 31.
204 See McKittrick, 142 F.3d at 1173–74.
205 Id. at 1173.
206 See id.
207 Id. at 1174.
208 Id.
209 See McKittrick, 142 F.3d at 1174.
210 See id. The court also noted the government’s point that even if the experimental population were invalid, the wolf McKittrick shot would still be protected as endangered under the ESA by virtue of simply being in the United States. See id. at 1174 & n.2.
211 See id. at 1174.
212 See id.
213 See id. at 1175.
214 See McKittrick, 142 F.3d at 1175.
215 See id.
216 See id.
217 Id.
218 See id. at 1178–79.
219 See McKittrick v. United States, 119 S. Ct. 806 (1999).
220 See McKittrick, 142 F.3d at 1175; Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1372–73 (D. Wyo. 1997), rev’d, 199 F.3d 1224 (Jan. 13, 2000).
221 McKittrick, 142 F.3d at 1175; Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1371–73.
222 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1372–73.
223 See id.
224 See McKittrick, 142 F.3d at 1175.
225 See id. at 1175, 1178.
226 See generally 199 F.3d 1224 (10th Cir. 2000).
227 See id. at 1241.
228 Apparently experiencing a change of heart, one of the original plaintiffs, the National Audubon Society, moved to dismiss its claims, realign, and join the defendants. The Tenth Circuit granted the motion. See id. at 1230.
229 See generally id.
230 See id. at 1238-39.
231 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1239.
232 See id. at 1238-39. The court also noted that, in any case, most wildlife experts no longer differentiate between the different subspecies of gray wolf, since many of them are extinct. See id. at 1239.
233 Endangered Species Act, 16 U.S.C.  1539(j)(2)(A) (1973 & Supp. 1996); Wyoming Farm Bureau Fed’n, 199 F.3d at 1236.
234 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1236.
235 Id.
236 Id.
237 Id.
238 Id.
239 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1236.
240 See id. at 1233-36.
241 See id. at 1233.
242 See id.
243 Id. at 1234 (emphasis added).
244 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1234.
245 Id.
246 See id. at 1235-36.
247 See id.
248 See id.
249 Wyoming Farm Bureau Fed’n, 199 F.3d at 1235.
250 See id. Presumably, the inverse applies and any reintroduced wolf which wanders outside of the experimental areas automatically receives the full endangered protection which a naturally occurring wolf would receive. See id. The Tenth Circuit did not specifically state this, however. See id.
251 See id. at 1233-40.
252 See id. at 1233-39.
253 See generally id.
254 As mentioned earlier, it is not yet clear whether the Wyoming Farm Bureau Federation plaintiffs will appeal the Tenth Circuit’s decision to the United States Supreme Court. The analysis section of this Comment, however, will assume that an appeal will be made.
255 See United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999); Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1355 (D. Wyo. 1997).
256 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1356 n.11.
257 See id. at 1355–56. It should be noted here that wolves from the irremotus and occidentalis subspecies have substantially similar body frames, pigmentation, heights, and weights. See Lawrence, supra note 2, at 20. Also, interbreeding of wolf species has been occurring for quite a long time, and given these two species’ proximity to each other, it can be inferred that interbreeding of the two species has already occurred. See id.
258 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1368.
259 Endangered Species Act, 16 U.S.C.  1531(b) (1973 & Supp. 1996) (emphasis added).
260 Id.  1539(j)(2)(A) (emphasis added).
261 See id.  1531.
262 See id.  1531–1544; 50 C.F.R.  17.84 (1994).
263 See 16 U.S.C.  1531–1544; United States v. McKittrick, 142 F.3d 1170, 1174 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999) (holding that FWS’s designation of the experimental population was proper); Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1238-39 (10th Cir. 2000).
264 See Lawrence, supra note 2, at 16, 18; see also Wyoming Farm Bureau Fed’n, 199 F.3d at 1239 (noting that the most “recent studies conclude there is very little differentiation between the many subspecies of gray wolf previously recognized.”).
265 See Lawrence, supra note 2, at 16, 18.
266 See McNamee, supra note 18, at 31.
267 See id.
268 Id.
269 See id.
270 See Endangered Species Act, 16 U.S.C.  1531–1544 (1973 & Supp. 1996); United States v. McKittrick, 142 F.3d 1170, 1174 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999); Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1369 (D. Wyo. 1997); Wildlife and Fisheries, 50 C.F.R.  17.84.
271 As discussed earlier, these include the Tenth Circuit, the Ninth Circuit, and the Wyoming district court.
272 See McKittrick, 142 F.3d at 1175; Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1234; Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1371.
273 McKittrick, 142 F.3d at 1175; Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1371.
274 McKittrick, 142 F.3d at 1175 (emphasis added).
275 Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1372.
276 Id. at 1371.
277 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1228-29.
278 See id.
279 See id. at 1236. Neither the Wyoming district court nor the Ninth Circuit directly addressed this issue, but instead focused on the issue of “wholly separate geographically,” which is discussed in the next section of this Comment. The Tenth Circuit was the first to deal directly with the “current range” question. See id.
280 See Strauch, supra note 106, at 45.
281 See id. at 45–47.
282 Lawrence, supra note 2, at 57.
283 See id.
284 Id. at 146.
285 See, e.g., id. at 57, 146; Strauch, supra note 106, at 4547.
286 See Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1238-39 (10th Cir. 2000).
287 See id.
288 Id. at 1236.
289 See id.
290 See United States v. McKittrick, 142 F.3d 1170, 1174–75 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999); Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1355 (D. Wyo. 1997).
291 Endangered Species Act, 16 U.S.C.  1539(j)(1) (1973 & Supp. 1996).
292 See McKittrick, 142 F.3d at 1175.
293 See Wildlife and Fisheries, 50 C.F.R.  17.84(i)(3)(vii) (1994).
294 See id.
295 See Causey, supra note 4, at 471.
296 See 50 C.F.R.  17.84(7)(iii).
297 Id.
298 See Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1370 (D. Wyo. 1997); 50 C.F.R.  17.84(7)(iii).
299 See 50 C.F.R.  17.84(7)(iii). Recall that the Tenth Circuit directly addressed this enforcement issue in the Wyoming Farm Bureau Federation case. See Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1235-36 (10th Cir. 2000). The court solved the “lone disperser” problem by holding that the legal protection of any individual wolf is clearly known “depending entirely on where the wolf is, not where it might once have been.” Id. at 1235. This echoes the enforcement provision in the special rules (discussed above) by classifying wolves according to their geographic location and not their place of origin. See id.
300 See United States v. McKittrick, 142 F.3d 1170, 1175 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (Jan. 11, 1999); Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1373.
301 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1235-36.
302 See McKittrick, 142 F.3d at 1175; Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1371.
303 See Endangered Species Act, 16 U.S.C.  1539(j)(1) (1973 & Supp. 1996) (emphasis added); see also Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1371.
304 See McKittrick, 142 F.3d at 1175; Wyoming Farm Bureau Fed’n, 199 F.3d at 1235-36.
305 See McKittrick, 142 F.3d at 1174; Wyoming Farm Bureau Fed’n, 199 F.3d at 1234; H.R. REP. NO. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. Congress’s intent to inject section 10(j) with flexibility also explains why this Comment does not advocate that Congress officially define some of the terms in section 10(j), such as “population,” “current range,” and “wholly separate.” See 16 U.S.C.  1539(j). As discussed throughout this Comment, the Secretary was vested with the power to define such terms, and any interference by Congress would infringe on the Secretary’s flexible management.
306 See Wyoming Farm Bureau Fed’n, 987 F. Supp. at 1372.
307 Id.
308 Id. at 1373.
309 See id.
310 142 F.3d at 1174 (quoting H.R. REP. NO. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833).
311 See Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1234 (10th Cir. 2000).
312 See McKittrick, 142 F.3d at 1174; Wyoming Farm Bureau Fed’n, 199 F.3d at 1234.
313 H.R. CONF. REP. NO. 97-835, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871.
314 See Lawrence, supra note 2, at 146.
315 See id. at 57.
316 See Wyoming Farm Bureau Fed’n, 199 F.3d at 1233.
317 H.R. CONF. REP. NO. 97-835, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871.
318 See id.; see also Wyoming Farm Bureau Fed’n, 199 F.3d at 1235 (stating that “we find nothing in the Endangered Species Act that precludes steps to conserve a species in order to protect isolated individuals.”).
319 See Dutcher & Ballantine, supra note 25, at 49.
320 See id.
321 Recall that, according to the Wyoming district court, the term naturally occurring “population” includes lone dispersers within the experimental areas. See Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1372, 1375 (D. Wyo. 1997). The importance of this distinction will become clear in the following paragraphs.
322 See id. at 1376.
323 These collars are high-tech devices that feature two darts with anesthetizing drugs attached to a standard radio-telemetry collar. See Gibson, supra note 5, at 7. This allows the wolves to be tracked even at long distances. See id. It also enables a signal to be sent to the collar, triggering the injection of one of the tranquilizer darts, allowing recovery program administrators to examine or move a wolf, if necessary. See id.
324 See Renee Askins, You Really Don’t Understand the News, Post Register, Jan. 18, 1998 (visited Sept. 1, 1999) <http://www.idahonews.com/011898/opinion/12521.htm>.
325 See Endangered Species Act, 16 U.S.C.  1538(a)(1) (1973 & Supp. 1996).
326 Id.
327 Id.  1532(19) (emphasis added).
328 See id.
329 McNamee, supra note 18, at 86.
330 See Restoring America’s Wolves (visited Feb. 27, 1999) <http:www.nwf.org/ wolves/index.html>.
331 See McNamee, supra note 18, at 86.
332 Both the Wyoming district court and the Tenth Circuit acknowledged that they were required to handle the case as an appeal from an administrative decision. See Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000); Wyoming Farm Bureau Fed’n v. Babbitt, 987 F. Supp. 1349, 1353 & n.1 (D. Wyo. 1997).
333 Brief for Intervenor-Defendants-Appellants National Wildlife Federation, Defenders of Wildlife, et al., available at <http://www.defenders.org/ynpdbr10.html>.
334 50 C.F.R.  17.84(10) (1994).
335 See Endangered Species Act, 16 U.S.C. 1539(j) (1973 & Supp. 1996).
336 See 50 C.F.R. 17.80.
337 Id.  17.80(b).
338 See id.
339 See Askins, supra note 324.
340 See Restoring America’s Wolves, supra note 330.
341 See id.
342 See Americans Say Wolves Should Stay (visited Oct. 29, 1998) <http://www.nwf.org/ wolves/pollrls.htm>. The American Farm Bureau Federation (AFBF), one of the co-plaintiffs, may already be trying to distance itself from the negative publicity of the past few years. See Victory for Wolves and Wildlife: Appeals Court Rules Yellowstone Wolves Can Stay in Park (visited Jan. 26, 2000) <http://www.defenders.org/releases/pr2000/pr011300.html>. Perhaps coincidentally, AFBF President Dean Kleckner, who has long pushed for removal of the Yellowstone wolves, lost his job on the same day the Tenth Circuit opinion came out overruling the AFBF’s 1997 victory. See id.
343 Jerry Miller, Send the Wolves Back, Post Register, Jan. 18, 1998 (visited Mar. 2, 1999) <http://www.idahonews.com/011898/opinion/12520.htm>.
344 See McNamee, supra note 18, at 86.
345 See supra notes 2–10 and accompanying text.
346 See supra notes 17–22 and accompanying text.
347 See Miller, supra note 343.
348 See Dutcher & Ballantine, supra note 25, at 163.
349 See National Wildlife Federation, Court Reversal of Wolf Removal Order “Victory for Common Sense Conservation” (visited Jan. 26, 2000) <http://www.nwf.org/wolves/court_ reversal.html>.
350 See Northern Rockies Wolves Could Lose Their Endangered Status (visited Apr. 16, 1999) <http://www.wildrockies.org/predproj/4Campaigns/FPP/Downlisting.htm>.
351 See Case to Be Heard in Richmond on Thursday: Defenders Fight Legal Challenge of Red Wolf Program in North Carolina (visited Dec. 26, 1999) <http://www.defenders.org/ pr102799.html>.
352 See Mexican Wolf Wins in Court; Yellowstone Wolf Case Still Pending (visited Dec. 26, 1999) <http://www.defenders.org/pr102899.html>.
353 For example, FWS has proposed a wolf reintroduction program for the Northeast, including areas of Maine, New Hampshire, Vermont, and New York. See Heidi Ridgley, Opening the Door to Wolf Recovery, Defenders, Fall 1999, at 13.
354 Dutcher & Ballantine, supra note 25, at 181.