Judge Winmill holds feds to sage grouse deal

U. S. Fish and Wildlife Service has wanted to back out of a court mediated deal to conduct and complete a “status review” on the sage grouse by May 2009. A status review looks at the the scientific literature to see if adding a species to the endangered or threatened species list is warranted.

Earlier the USFWS had denied listing the rapidly declining bird, but that was during the Julie MacDonald period at the Department of Interior. Western Watersheds Project, represented by Advocates for the West sued and Idaho federal judge Winmill overturned their denial due to MacDonald’s political meddling on behalf of her industry friends.

USFWS has wanted to make a decision before Dec. 2008 because then it would be under control of the Bush Administration.

A status review is supposed to use the best scientific information available in making a decision, and a major scientific report on the sage grouse is due to come out in late 2008. Cynics would say they would like to make a decison before then not just because Bush will still be in office, but they won’t have to consider these new findings.

Story in the Casper Star Tribune. Judge holds feds to grouse deal. By Todd Dvorak. Associated Press writer





  1. Layton Avatar

    Interesting that the judge is holding the feds to a “deal “they made previously.

    I wonder if he’ll do the same thing to the “wolfies” in the upcoming court battles for delisting.


  2. Mack P. Bray Avatar
    Mack P. Bray

    You’re implying that the “wolfies” made a deal.

    State the terms of the deal.

    Mack P. Bray
    My opinions are my own


  3. Concerned Avatar


    There was no “Deal” made, this case is about a agreement to do a review, the reviews had been completed and there was and continues to be a plan in place concerning wolves, as with any recovery effort, the plan includes speculation and conclusions based on the best available science at the time the program begins…but again, there was no “agreement” or “deal’ made..concerning wolves…as there will be no “deal” made if the grouse is listed…

  4. Brian Ertz Avatar

    it’d be consistent in holding to the best available science in both instances

  5. Buffaloed Avatar

    What about the deals made with concern to Snake River Salmon? Since the construction of the Snake River Dams there has only been one year (2001) where there have been returns capable of meeting the mitigation goals and those were primarily hatchery fish. With regard to wild fish their numbers have been on a decline and NOAA Fisheries has worked vigorously to protect the dams at the expense of the fish. They have recently been reprimanded by Judge Redden as well as nearly 100 members of Congress for disregarding the best available science, dam removal, and THE LAW.

    The Bush Administration has never held any regard for sportsmen or wildlife PERIOD. If you think that environmentalists are just trying to put people out of business then you are wrong, they are trying to save resources that would benefit a majority of the people not just the few who have to depend on WELFARE from the government which is supposed to be comprised of the PEOPLE, people who are increasingly funding their own worst interests especially if they are not the top 1% economically.

  6. Layton Avatar

    Oh c’mon Buffaloed,

    Are you really trying to convince people that the mess with the salmon runs is the fault of the Bush administration?? Give me a break!!

    The salmon fiasco has lived on through administrations from BOTH sides of the aisle — for many years.

    The people that approved damns (no I didn’t misspell it) on the Snake with no fish ladders when they were first built were suffering from severe cases of cranial/rectal insertion then and their descendants still have the same disease!!

    The “study them till they’re gone” mentality is NOT a thing that the Bush administration invented, it was invented by the BPA!!

    By the way, salmon and wolves are two distinctly different things — you and I might even mostly agree on this one.

  7. Layton Avatar

    Sorry, hit the “submit” button a little quickly.

    I also hope that Reddon raises hell with NOAA, it’s high time that someone did. Then if he’d just take it one step further and get the tribal gill nets out of the Columbia ——-


  8. Layton Avatar


    I’m really sorry if you don’t remember the original terms of the 10j ruling that — first of all defined this bunch of puppies as “experimental and non-essential”, and then set minimum populations for beginning de-listing proceedings — well — Maybe you should just look it up again.

    I hear there ARE beginning to be some breakthroughs on the Alzheimer’s frontier.


  9. Mack P. Bray Avatar
    Mack P. Bray

    More diarrhea of the mouth from Layton.

    Again, state the term of the “deal” that “wolfies” made.

    While you’re at it, name the “wolfies.”

    Layton Says:
    March 7, 2007 at 11:29 am


    “As far as a “deal” goes, the state of Idaho revoked their deal after the results of 1994 election. Thus, there was no “deal” with the state of Idaho upon wolf reintroduction, and Idaho’s official position remains HJM 5, no wolves whatsoever. Where’s the deal?”

    The “deal” that I am referring to is the original (10j?) ruling that got wolves back into the three state area.

    Didn’t the original agreement call for 30 breeding pairs for 4 years in the three state area? This was agreed to by the parties that drew it up. I don’t remember exactly what people were on that committee, but I suspect that you do. I do seem to recall that one of the Peak couple from the U of I that you folks are so fond of quoting was on it.

    Mack P. Bray
    My opinions are my own


  10. matt bullard Avatar
    matt bullard

    Layton – you just said it – the rule that started this all stated a *minimum* population to *begin* the delisting process. That process has begun. That was not a “deal” with “wolfies”. As you also may recall, there were other important aspects of the rule, such as state management plans that would conserve the population of wolves above the minimum set by the recovery plan. The lawsuit deals more with the viability of the state plans and their acceptability to maintain a viable population across the recovery area. Nowhere in the original reintroduction rule does it state that the population should be managed for 300 wolves. I still don’t get why that number gets thrown around as a maximum number to manage for. New science that is being brought to light suggests that to maintain the viability of the population, many more wolves would actually be needed. And the experimental, non-essential status (the 10(j) rule) allows for more flexible management of a reintroduced threatened or endangered species. I think we could all agree that more flexible management of wolves has occurred during the reintroduction program – at least if you compare it to the alternative of fully protected status, which would have been much more restrictive…

  11. Layton Avatar

    Pull your head out Mack,

    If you want to discuss it — fine.

    If you need a primer on the wolf thing — do it yourself.

    You have looked up a quote from 2007 — is it somehow invalid or different now?? The “for” side made agreements then that they are trying to back out of now — just like many of us from the “against” side predicted that they (you) would. What’s new??

    If that’s “diarrea of the mouth” I’m guilty.

    Who are the wolfies? How about we just say they are named in the two current legal actions, the one against modifying the 10j ruling and the one trying to stop the delisting.


  12. Mack P. Bray Avatar
    Mack P. Bray

    More diarrhea of the mouth from Layton.

    “The “for” side made agreements then that they are trying to back out of now — just like many of us from the “against” side predicted that they (you) would. What’s new??”

    Let’s try one more time:

    1) Name “The Deal.” “The Deal” does have a formal name or descriptor, does it not? If “The Deal” is a law, ruling, regulation, or whatever, name it.

    2) Name all the participants of “The Deal”

    3) State the terms of “The Deal” or, preferably, direct us to a URL with the terms of “The Deal”

    4) Name the “for” side and the agreements they’re trying to back out of.

    If you can’t or won’t do the above, be a big boy and admit you can’t or won’t.

    In other words, Layton, what are you talking about? What is this “Deal” made between X and the “wolfies?”

    Mack P. Bray
    My opinions are my own


  13. Layton Avatar


    You said “Layton – you just said it – the rule that started this all stated a *minimum* population to *begin* the delisting process. That process has begun. That was not a “deal” with “wolfies”.

    “The process has begun”?? Which process? A process to actually get the wolves delisted? Ooooorrrr, maybe just a process to delay, delay, delay, ad nauseum, as the population of wolves grows and the prey population shrinks??

    Is there ANY PART of this process that would reflect even a small bit of good faith on the part of the wolf advocates??

    Then this “I still don’t get why that number gets thrown around as a maximum number to manage for”.

    I don’t see that either Matt, every time I see a number quoted — and by the way, that number here in Idaho seemst to be 450 — it’s a MINIMUM number NOT a maximum.

    I keep hearing that “Idaho and Wyoming will slaughter wolves at will” — do you REALLY think that, with the spotlight that will be on them, the states will be stupid enough to let that happen. Even Republican politicos aren’t stupid enough to go through the whole listing thing again!

    Plus that, if the wolves are HALF as smart as they are supposed to be, after the first half dozen times they hear a rifle go off that is aimed in their direction they will be a LOT harder to find.

    Face it, what’s needed here is some modicum of common sense. We’re not going to get rid of ALL the wolves OR have a “wholesale slaughter” this is just a stupid idea from stupid people.

    Nor should the wolf population be allowed to grow with no controls. The current numbers of these predators should demonstrate quite handily that there does NOT need to be thousands more of them to maintain a viable gene pool.


  14. matt bullard Avatar
    matt bullard

    Layton, the federal government has started the process to delist wolves. What process were you referring to? You could actually say that the process to delist starting in 2002 when the minimum population triggers were met for the third year as stated in the original 10(j) rule. Surely there are some environmental groups that are trying to stop that process. It might work. I never once said I favor the lawsuits – I do not. So I guess there are two processes going on right now. And I have a feeling that Idaho and Wyoming ARE going to try their best to significantly reduce wolf numbers. Will it be close to the minimum number? In Idaho, I think that the state wildlife managers are smarter than that, but we do have a significantly larger number of wolves for them to experiment with. In Wyoming, I would not be surprised if that state attempted to get back down to the number that triggered the delisting process (minimum, maximum, or trigger for delisting, whatever your preference).

  15. Layton Avatar


    You said “I never once said I favor the lawsuits – I do not”

    Sorry — I didn’t mean to put word in your mouth.

    I think we agree on lots of this stuff — as for what the states will do AFTER delisting. Well, first the delisting has to happen, which I think will take years, and then we’ll just have to see.

    If the “for” side has attorneys that can ask inane questions with obvious answers like Mack can — that could be a loooooonnnng time. 8^)


  16. Layton Avatar

    By the way — I just figured out we kind of hijacked this thread — if Ralph wants to start one about the wolf thing that’s OK — or if he wants us to quit this, or continue it, that’s OK too.

    It’s his blog.


  17. Mack P. Bray Avatar
    Mack P. Bray

    Well, Mr. Layton, you can’t describe “The Deal” or the participants of “The Deal,” can you.

    Time to be a big boy and admit you cannot.

    But if you think you can, go ahead and do so.

    Mack P. Bray
    My opinions are my own


  18. Ralph Maughan Avatar

    It’s fine with me if folks want to use this thread to discuss whether there was some deal made about wolf recovery.

    It’s important because you read or hear all the time that “a deal is a deal,” and it ought to be honored.

    So at the risk of being repetitious. Where can we find the elements of the deal and who made the deal?

    I do remember that many conservationists opposed the wolf reintroduction in the way it was done. They didn’t like the “experimental, non-essential” classification, and/or they wanted recovery to take place entirely by the process of migration down from Canada because that method would require strict, tough regulations that could be used to accomplish other important conservation objectives. In fact as soon as the wolves were reintroduced the Sierra Club and a number of other organizations sued to set aside the method used — “experimental, non-essential.”

    I do recall it was Idaho US Senator Jim McClure, who didn’t like wolves, who was behind the reintroduction into Idaho (not just to Yellowstone). He wanted it because he correctly saw that wolf recovery by recolonization would require big restrictions on the mining, timber and livestock industries in Idaho. These were his good friends he was trying to protect.

  19. Mack P. Bray Avatar
    Mack P. Bray

    Layton wrote: “The “for” side made agreements then that they are trying to back out of now — just like many of us from the “against” side predicted that they (you) would.”

    Name the agreements that the “for” side made that they are trying to back out of now. Also name the other party or parties to these supposed agreements.

    Layton wrote: “The current numbers of these predators should demonstrate quite handily that there does NOT need to be thousands more of them to maintain a viable gene pool.”

    Now you’re playing geneticist. As an genetics expert, you should know that the size of a population does not necessarily indicate healthy genes in that particular population. How could an expert geneticist such as yourself make such an error? Too much beer in your test tubes?

    Mack P. Bray
    My opinions are my own


  20. Buffaloed Avatar

    It seems to me that the anti crowd seems to feel that there is no history before the reintroduction occurred other than the stories about how “we killed them for a reason”. Very few people remember McClure’s role in this history either. Their story is always that the “Feds dumped these CANADIAN wolves on us”. It’s always some deal that was made by the “wolfies” which seems to lump the FWS and wolf advocates, but when asked they can never define the deal or show who was involved.

    Another idea that seems to run rampant is that the wolf population has no controls. They have the idea that wolves will become “overpopulated” and overcome their prey. This is fallacy. Wolves have their own controls, they either kill each other like they do in the Northern Range of YNP, they reduce reproductive success where either fewer pups are born or pups that are born don’t survive, they disperse to new areas where there may or may not be suitable habitat. Wolf populations are pushed and pulled by their prey. If their prey base is high then their density doesn’t increase beyond what their social structures will allow e.g. the Northern Range, if their prey base is low then their density won’t go above what the prey base can support e.g. the Clearwater.

    The habitat for the prey is the driving force. It also seems evident that wolf predation can have some impacts on herds that are above their carrying capacities e.g. the Northern Range, but have little impact on herds where there is good habitat and healthy populations e.g. Central Idaho, but also have little impact on herds with declining habitat e.g. the Clearwater.

    In the case of sage grouse there was a deal and it can easily be pointed to because it was a formal deal put down in writing.

  21. Layton Avatar

    well Mr. Bray (like a donkey),

    The “deal” of which I speak is the 10 j ruling — do you remember that?? In that ruling, written up with all sorts of “for” organizations participating — DOW, et al. the number of wolves referenced to START delisting procedures was 30 breeding pairs for the three state area for (I think) 4 years — I’m not going back a look at the thing again, besides that, you probably have it memorized.

    Yes, before you bring it up, it also said that all three states had to have an “approved” plan before the delisting could occur — note this Mr. Bray (like a donkey), “before delisting could occur” nothing about not starting the procedure before that.


    I think that you know that answer too.

    I wasn’t involved in this whole wolf fiasco when the original 10j ruling happened, I don’t know intimately who was involved — I DO KNOW that there were several “conservation” groups that were privy to the design of the ruling. It was NOT done without their inputs.

    Now, by ANYBODY’s estimation, the basic number has been wildly exceeded and guess what — sure enough, it isn’t enough — who would have expected less. Even tho’ the base number now (in Idaho anyway) has become 15 breeding pairs. AS A MINIMUM.

    As for playing geneticist, no, I’m not — but it doesn’t take a rocket scientist to figure out there are enough wolves out there to quiet handily make more. When the folks that intro’d these critters decided to bring some from Canada their theory was that the wolves from up there were here anyway, so it didn’t make any difference. Is it somehow different now??

    Just one other question Mr. Bray (like a donkey) is your rudeness on the Internet something that you practise all the time or is it just that the anonymity of a keyboard makes you more intelligent and courageous??


  22. Catbestland Avatar

    I wouldn’t be accusing anyone else of “rudeness on the Internet”. It is very hard to get beyond your childish practice of namecalling i.e. (Bray, like a donkey) in order to give your points some consideration. The reader just naturally assumes your reasoning is no better than your manners.

  23. Layton Avatar


    If you would bother to look at my previous postings on this blog (or any other) I don’t think that you will find me stooping to this silly crap —— EXCEPT in the case of Mr. Bray (like a donkey) — AND if you will also note — as much as I hate to say it, I let his idiotic, juvenile bullshit get to me this time.

    Maybe “the reader” should look around a little.


  24. Brian Ertz Avatar


    no one organization can trump the law with “deals” … as ralph reminded, many folk didn’t think the reintroduction, and the diluted protection that followed, was lawful ~ they believed full protection for migration would be more appropriate.

    personally, it seems to me that the politicized results – this particular ‘end-game’ tends to be vindicating that perspective ~ but that’s an entirely different conversation.

    there are as many different schools of thought as there are folk involved.

    as matt bullard demonstrates ~ there are a couple in the community that don’t support the lawsuits. from what i understand, a party promised not to litigate in exchange for slightly favorable language in state management plan – they did not make that “deal” under any allusion that it would undercut others’ opportunity to litigate.

    the bottom line is ~ nobody made any “deal”, to make such a “deal” that anti’s suggest would have been illegal ~ and from what I gather, the Livestock interest at that point in time had no intention of risking the “experimental population” status — industry’s effective incursion/obfuscation of one of the most important exercises of one of the country’s/world’s most important environmental laws.

  25. JB Avatar

    Just to reiterate: conservationists did not (and do not) agree on the appropriate mechanisms for wolf recovery, or the number of wolves required for a viable population. There was vocal disagreement and, as Ralph Mentioned, an accompanying lawsuit. To suggest that everybody signed on to some “deal” is a revisionist version of history.

    In my view, this just shows the absurdity of “lumping” together the various conservation/environmental/widllife/etc. groups that have a stake in the management of wolves. Even the “pro-wolf” people who participate on this blog advocate a number of positions and sometimes disagree vehemently.

  26. Mack P. Bray Avatar
    Mack P. Bray

    Layton, the 10j wasn’t a “deal.” It is the regulation that governs management of the reintroduced wolf populations of the northern Rocky Mountains. Get over it. You couldn’t make a “deal” over a loaf of stale bread. But you’re more than welcome to utilize your freedom of speech and mis-characterize the 10j and anything else you want.

    According to the U.S. Fish and Wildlife Service, the northern Rocky mountain wolf population met numerical and distribution goals by the end of 2000. You have a problem with what you describe as a delay of delisting? Take it up with U.S. Fish and Wildlife Service. Oh, and you can blame Wyoming for dragging it’s 19th century ass into the equation at such a late date, with the blessings, of course, of U.S. Fish and Wildlife Service.

    Here’s something that will probably further confuse your little pea brain: in my opinion, the process of delisting started the moment wolves were released in Yellowstone and Idaho.

    Mack P. Bray
    My opinions are my own


  27. JEFF E Avatar
    JEFF E

    here is the why of the 10j rule along with the rule it self. form your own opinion.

    Congress added section 10(j) to the Endangered Species Act in 1982 to address the Fish and Wildlife Service’s and other affected agencies’ frustration over political opposition to reintroduction efforts perceived to conflict with human activity. Although the Secretary already had authority to conserve a species by introducing it in areas outside its current range, Congress hoped the provisions of section 10(j) would mitigate industry’s fears experimental populations would halt development projects, and, with the clarification of the legal responsibilities incumbent with the experimental populations, actually encourage private parties to host such populations on their lands. H.R. Rep. No. 97-567, at 8 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2808, 2817; see also 16 U.S.C. § 1539(j).

    Section 10(j), 16 U.S.C. § 1539(j), provides:

    Experimental populations

    (1) For purposes of this subsection, the term “experimental population” means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.

    (2)(A) The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.

    (B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species.

    (C) For the purposes of this chapter, each member of an experimental population shall be treated as a threatened species; except that ­

    (i) solely for purposes of [section 7, 16 U.S.C. § 1536] (other than subsection (a)(1) thereof), an experimental population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under [section 4, 16 U.S.C. § 1533]; and

    (ii) critical habitat shall not be designated under this chapter for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species.

    (3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before October 13, 1982 [the date of the enactment of this subsection], for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experimental population for the purposes of this subsection and whether or not each is essential to the continued existence of an endangered species or a threatened species.

    (Emphasis added).

    As the language of this provision makes clear, Congress contemplated the Secretary would promulgate special rules to identify each experimental population. As Congress explained:

    The purpose of requiring the Secretary to proceed by regulation, apart from ensuring that he will receive the benefit of public comment on such determinations, is to provide a vehicle for the development of special regulations for each experimental population that will address the particular needs of that population. Among the regulations that must be promulgated are regulations to provide for the identification of experimental populations. Such regulations may identify a population on the basis of location, migration pattern, or any other criteria that would provide notice as to which populations of endangered or threatened species are experimental.

    H.R. Conf. Rep. No. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2875. In other words,
    Congress purposely designed section 10(j) to provide the Secretary flexibility and discretion in managing the reintroduction of endangered species. By regulation, the Secretary can identify experimental populations, determine whether such populations are essential or nonessential, and, consistent with that determination, provide control mechanisms (i.e., controlled takings) where the Act would not otherwise permit the exercise of such control measures against listed species.


Dr. Ralph Maughan is professor emeritus of political science at Idaho State University. He was a Western Watersheds Project Board Member off and on for many years, and was also its President for several years. For a long time he produced Ralph Maughan’s Wolf Report. He was a founder of the Greater Yellowstone Coalition. He and Jackie Johnson Maughan wrote three editions of “Hiking Idaho.” He also wrote “Beyond the Tetons” and “Backpacking Wyoming’s Teton and Washakie Wilderness.” He created and is the administrator of The Wildlife News.

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