The crowds on Bob’s Knob made 754 and 755 skittish. They wouldn’t come down to the creek when the hill above was full of people, and they were still as leery of the park road as they had ever been. But O-Six seemed as oblivious to the watchers as she was to the road. She was perfectly content to spend an hour feeding on a carcass in plain view of a crowd of fifty people, to the delight of visitors with cameras.
Humans away from the road were different, however. Coming down into the Slough Creek drainage from an adjacent valley one morning, O-Six surprised a hiker walking along the hillside. Neither traveler spotted the other until they were close enough to make eye contact. O-Six panicked. She ran west toward the creek, looking over her shoulder as the man stood, equally stunned, watching her flee. She was so flummoxed that her normally sure footing failed her, and she fell into the creek. She eventually made her way up to the den, taking a long and indirect path, calculated to leave danger behind. When she arrived, she nursed her pups. Laurie reported O-Six’s encounter in her update that night. “The expression on her face,” she wrote, “was one of pure fear.”
6
REBELS IN THE SAGE
As O-Six entertained her fans on Bob’s Knob, a different sort of crowd was gathering on a crisp, early-summer morning in downtown Missoula, Montana. By nine o’clock, a throng of around a hundred people was milling outside the Russell Smith Federal Courthouse, a two-story shoebox of red brick on an otherwise picturesque street lined with dusty Subarus and full-size pickups. Among them were a father and daughter in matching camouflage hunting jackets. The girl, four years old with a perky blond ponytail, clung to her daddy’s neck with one hand and with the other held a fluorescent pink sign that read WILL THERE BE ANY ELK LEFT WHEN I GROW UP? A woman in her fifties with short hair and a lined, angular face wore a camo hoodie over a T-shirt with a silhouette of a wolf framed by a rifle’s crosshairs. Her hand-lettered orange sign read: AS YOU READ THIS…WOLVES ARE EATING MY FAMILY’S DINNER!
It was June 15, 2010, and inside the courthouse U.S. District Court Judge Donald Molloy was preparing to hear oral arguments in a lawsuit seeking to put wolves back on the endangered species list in Idaho and Montana. It had been only fourteen months since the U.S. Fish and Wildlife Service officially delisted wolves in the two states, and now the agency was back in court again, fending off yet another lawsuit. Reporters from the local television stations worked the crowd, collecting footage for what would be the top story on every broadcast that night. The handful of pro-wolf advocates in attendance weren’t especially vocal, perhaps for good reason. “I should yank that wolf tie right off that guy’s neck,” someone in the crowd muttered, as a group of wolf supporters approached the courthouse.
An attorney named Doug Honnold sidled into the crowd and slowly worked his way toward the courthouse doors. He was fifty-five, with a lean frame, thinning black hair, wire-rim glasses, and a full beard that was turning gray. He wished, not for the first time, that he was not wearing a suit. He knew from long experience that in Montana it was the functional equivalent of lugging around a sandwich board that read I AM AN ATTORNEY, which, in turn, was the same as saying, “I am part of the problem.” The Montanans blocking the sidewalk before him did not seem especially inclined to clear a path as he approached.
Even without the suit, some in the crowd might well have recognized him as the enemy. Based in Bozeman, he had been the chief litigator for the Northern Rockies office of Earthjustice, the environmental movement’s best-known legal advocacy nonprofit, for almost two decades. “Because the Earth Needs a Good Lawyer” was the group’s slogan, and Honnold was certainly that, having won a string of huge and highly controversial lawsuits over the years. He’d stopped a gold mine from opening just outside Yellowstone, and he’d torpedoed a 47,000-acre logging proposal in the Bitterroot National Forest in Montana, among others. He’d ended the use of off-road recreational vehicles on thousands of acres of grizzly bear habitat in eastern Idaho’s Targhee National Forest. And he had filed five suits in defense of wolves in the last six years, none more high-stakes than this one.
The courtroom was not especially large—the gallery included perhaps ten rows of church-pew-style benches—and when every seat was full, the bailiff was forced to close the doors, directing the remainder of the crowd to an overflow room, where a closed-circuit monitor had been set up to display the proceedings. If the spectators were overwhelmingly anti-wolf, Honnold noticed that his side was also outnumbered in the attorney’s well. Earthjustice was representing a coalition of environmental groups opposed to the delisting—including the Sierra Club and several smaller nonprofits—with a combined membership in the millions. But Honnold had only two attorneys with him: Tim Preso, a colleague from the Bozeman office, and Deborah Sivas, director of the Environmental Law Clinic at Stanford University, who was accompanied by one of her law students.
Clustered around the defendant’s table, meanwhile, were roughly twenty attorneys. Lawyers from the Department of Justice and the Department of the Interior were present, as well as a senior advisor to President Barack Obama’s secretary of the interior, Ken Salazar. Joining the federal team were attorneys representing the states of Idaho and Montana. Nobody from the State of Wyoming was present, since Wyoming’s wolves had been excluded from Fish and Wildlife’s delisting order. Wyoming governor Dave Freudenthal was still battling the federal government over the suitability of the state’s wolf-management plan, and as a result wolves in Wyoming were still considered an endangered species and couldn’t be hunted. Representatives from various ranchers’ associations and hunting groups were present as well.
Honnold spotted Ed Bangs, the Fish and Wildlife biologist who had directed the wolf recovery project since 1988, seated with the defendants. He was an unlikely member of the opposition. As the face of the program for seven years prior to reintroduction, Bangs, who was fifty-nine, had arguably done as much as any other person to bring wolves back to the Northern Rockies. Born and raised in a blue-collar California family, he’d spent thirteen years as a field biologist in Alaska, where he’d come to know wolves well. He had organized hundreds of community meetings to explain the reintroduction program in venues across the West, often in tiny ranching communities where support for wolves was nonexistent.
Plainspoken, self-effacing, and funny, he knew how to talk to his fellow westerners and had won the grudging admiration of quite a few adversaries over the years. He often began his talks by saying he didn’t love wolves, and not just because he’d once been bitten by a yearling in a collaring mishap that left him with a bloody puncture wound clear through his wrist. His commitment to reintroduction was about science, not sentiment. Wolves belonged in the Northern Rockies because they played a vital role in the ecosystem, not because they were beautiful or fun to watch.
Now, however, he found himself on the other side of the fight. As far as Fish and Wildlife was concerned, wolf reintroduction had been a success. It was time for the federal government to turn their welfare over to the states, where wildlife management properly belonged.
Honnold and his clients were keeping that from happening, but Bangs didn’t take it personally. After the last time Honnold beat Fish and Wildlife in court, Bangs had offered his congratulations. “If I’m ever in trouble,” he said, “I want you representing me.” For his part, Honnold found Bangs more likable than most bureaucrats (especially the ones he sued) and appreciated his straightforward style. They were both getting close to retirement, and the welfare of wolves had consumed an outsize portion of their careers. For Bangs, delisting would mean wolf recovery in the Northern Rockies was finally complete; for Honnold, one last win for wolves would be the pinnacle of a long and rewarding career.
As the defense team’s army of attorneys took their seats, Honnold leaned over and caught Bangs’s attention. “Do you think you have enough backup, Ed?” he asked, and Bangs gave a tense laugh.
—
The crowd, so rambunctious on the sidewalk, seemed to lose
its verve once inside. A nervous silence fell over the courtroom as everyone awaited Judge Molloy’s entrance. Honnold had appeared in Molloy’s court many times and knew him well. Appointed by President Clinton in 1995, the sixty-four-year-old judge was extremely hardworking—the first to show up at the courthouse in the morning and the last to leave. He read every brief, and he knew the law; his was not the kind of courtroom where an unprepared attorney was likely to escape notice. Molloy was a lifelong Montanan and looked the part, right down to the bushy mustache. Yet he had a reputation for independence, most notably in a series of controversial rulings rejecting timber sales proposed by the U.S. Forest Service, which environmentalists had argued would destroy essential wildlife habitat.
He had generally been an ally to wolf advocates. It was Molloy who had shut down Fish and Wildlife’s short-lived Wyoming delisting in 2008, balking at the state’s management plan with its tepid commitment to maintaining sufficient numbers and its enormous “predator zone,” in which wolves could be shot at any time for any reason. Fish and Wildlife’s unusual response—leaving wolves on the endangered species list in Wyoming, while moving forward with delisting in Idaho and Montana—was what had brought everyone to court today.
But Molloy’s support was far from a sure thing. Honnold had filed his suit immediately after Fish and Wildlife published its delisting rule in the spring of 2009. There was no way the suit would be resolved before the coming fall hunting season, so Honnold had asked the judge for an injunction, forestalling any hunting of wolves until the court had a chance to rule on the merits of the case.
Although Molloy had granted a similar injunction in 2008, this time he declined. He conceded that Honnold had a good case, but he disagreed with the attorney’s contention that the fall hunt would cause irreparable harm. To the delight of officials in Idaho and Montana, he allowed the first legal hunt in decades to go forward, as each side filed its briefs that winter and prepared for oral arguments the following summer.
That decision led to the destruction of Yellowstone’s Cottonwood Creek Pack, along with the death of 254 other wolves across the region by season’s end. Painful as it was to Honnold and his clients, the hunt had at least clarified what was at stake. Molloy was either going to reject Fish and Wildlife’s delisting rule a second time, sending the agency and the states away to try once more to come up with a plan that passed legal muster, or he was going to give the rule his blessing, which would mean hundreds more wolves would be killed that fall.
—
The door to Molloy’s chambers opened, and the judge strode purposefully to the bench. A former college football star and navy fighter pilot, Molloy was a big man, with a broad forehead, thinning hair, and a scowling mien. In his brief opening remarks, he acknowledged the charged nature of the issue at hand but dismissed such concerns in his characteristically brusque way.
“We’re here this morning to argue the legal issues in the case,” he began. “They are not normative questions about the goodness or badness of decision-making.” He didn’t care whether hunting wolves was good public policy; he was just trying to determine whether it was being done in accordance with the law.
The judge had given each side just an hour and twenty minutes to make its best case, and the plaintiffs were up first. Honnold spoke quickly and confidently, like a college professor addressing a lecture hall full of undergraduates.
“This case is critical to both wolf recovery and the continued viability of the Endangered Species Act,” he began. The truth about Fish and Wildlife’s latest delisting rule, he told the court, was that it was based on politics, not on science. The agency’s recovery plan for wolves in the Northern Rockies covered Wyoming, Idaho, and Montana, along with portions of Utah, Washington, and Oregon. Before wolves could be declared recovered and removed from federal protection, the plan stipulated that state officials in Wyoming, Idaho, and Montana (where the vast majority of wolves were found) would have to come up with management plans of their own that would ensure the continued viability of their respective wolf populations. Idaho and Montana had done that to Fish and Wildlife’s satisfaction, but Wyoming had yet to comply, choosing instead to sue the federal government rather than amend the plan Molloy had rejected in 2008.
Lobbied heavily by ranching and hunting interests, Governor Freudenthal wouldn’t budge, which meant that wolves could never be declared fully recovered across the whole region. The result had been a long-running stalemate. The partial delisting was the federal government’s attempt at circumventing the impasse, allowing game managers in Idaho and Montana to get control over the wolves in their own states, even as wolves in Wyoming remained on the endangered species list.
The problem was that it made no sense from a wildlife management perspective, Honnold argued. If the goal was to ensure the long-term survival of wolves in the Northern Rockies, their numbers had to be stable throughout the region, not just in a portion of it. Fish and Wildlife’s logic was legally suspect as well. There was no precedent, he pointed out, for delisting a contiguous population of a species in only a portion of its range. They were all the same wolves, and they moved back and forth across state borders regularly. Maintaining or removing protection according to the wolves’ current state of residence was an obvious effort to shoehorn a political solution into a legal framework that wouldn’t allow it. In the long history of Fish and Wildlife’s implementation of the Endangered Species Act, it had simply never been done.
Honnold glanced briefly at Mike Eitel, the Justice Department attorney in charge of the defense team, who looked on in stony silence. Eitel had written the brief explaining the legal rationale behind Fish and Wildlife’s decision. It was creative to say the least, and Honnold looked forward to hearing him defend it in front of Molloy.
But the trouble with the agency’s management of wolves went much deeper, Honnold continued, all the way back to 1987, when the original recovery plan was completed. According to the plan, the existence of just one hundred wolves and ten breeding pairs in each of the three key states for three consecutive years constituted a recovered population. (Wolves in Yellowstone National Park were excluded from the count.) This recovery goal was extremely modest—a choice, he argued, that was also driven by politics.
“You can go back and read the 1987 recovery plan,” Honnold said. “And there is simply no explanation for three hundred or the thirty breeding pairs that was selected. None whatsoever.” How had the magic number of three hundred wolves been arrived at? he asked the court. Why not five hundred, or a thousand, or two thousand? Wolves in the Upper Midwest states of Wisconsin, Michigan, and Minnesota, he reminded the court, were managed for much higher numbers by Fish and Wildlife. How could it be, he asked the court, that a recovered population in that part of the country meant twelve to fourteen hundred wolves, while delisting in the Northern Rockies, with a much greater expanse of suitable habitat on public land, required only three hundred? The answer, he suggested, was that one hundred wolves per state was the maximum number that officials in Montana, Idaho, and Wyoming had been willing to tolerate when the recovery plan was negotiated. It had nothing to do with science.
Of course, all parties had signed off on the numbers in the plan at the time. KEEP YOUR PROMISE, one of the protesters’ signs in front of the courthouse had read that morning, a sentiment that was hard to argue against. In the intervening twenty years, however, many wolf advocates had come to consider the terms of the recovery plan a kind of Faustian bargain. In comparison to the modest recovery goals set by Fish and Wildlife, wolf reintroduction was an unqualified success, immensely bolstering the states’ case that the time had come to delist. But now that the outstanding quality of the wolf habitat in the region had been established—now that there were at least seventeen hundred wolves in the region—the numbers in the original agreement were potentially disastrous. The delisting rule required Idaho and Montana to manage for 150 wolves each, as a kind of buffer against reaching the critical hundred-wolf level t
hat would trigger a return to federal protection. Even so, under the terms of the recovery plan, over two-thirds of all the wolves currently in the Northern Rockies could be legally killed with no repercussions.
In any case, Honnold now told the court, it didn’t matter what the 1987 recovery plan said. The law required Fish and Wildlife to make delisting decisions based on the best possible science at the time such calls are made. “For unknown reasons, Fish and Wildlife was confident that the area could not sustain more than a few hundred wolves,” he said. “This determination has been disproven by wolves on the ground.”
Arbitrarily directing each of the three states to manage for the same number of wolves made no sense, either, at least from a scientific perspective. Fifteen years after reintroduction, for example, Idaho now had twice as many wolves as Wyoming, a function more than anything else of the outstanding habitat in the central part of the state, which hosts the largest roadless wilderness area in the Lower 48. Yet Fish and Wildlife was still hewing to the terms of the original recovery plan, a political deal cut with three reluctant states that seemed predicated more on an agreement to “share the pain” than on any sound principle of wildlife management.
It was time to revisit the plan, Honnold concluded, in light of what had been learned since its inception. “None of us wants to go to the doctor who treats us with twenty-year-old medical practices,” as he put it.
Yet as flawed as the recovery plan might have been from the advocates’ perspective, it also contained a provision that Honnold hoped might be his ace in the hole. Just reaching the three-hundred-wolf threshold wouldn’t be enough to delist the wolf, according to the plan. Evidence of “genetic exchange” among the three separate wolf populations in the Northern Rockies—Greater Yellowstone, central Idaho, and northwestern Montana—would have to be established as well. This meant that Fish and Wildlife needed to document wolves dispersing from one core area to another and breeding in their new homes once they arrived.
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