Brief for 10(j) Lawsuit Filed in Federal Court

The 2008 10(j) rule violates the Endangered Species Act and the National Environmental Policy Act.

Now that wolves have been placed back on the list of endangered species a lawsuit, which was filed before delisting was proposed, is now able to proceed. The groups are challenging the 2008 10(j) rule change which lowered the bar to allow states to kill wolves for causing “unacceptable impacts” to ungulate populations if they can show “only that a wild ungulate population is failing to meet state or tribal management objectives – however defined by the states – and that
wolves are one of the major causes for that failure.” The previous 10(j) rule defined “unacceptable impact” as a “decline in a wild ungulate population or herd, primarily caused by wolf predation, so that the population or herd is not meeting established State or Tribal management goals.” The USFWS felt that the states could not show that to be the case and, without proper review, changed the regulations to give the states more flexibility to kill wolves.

10(j) Brief

The plaintiffs’ brief was filed on August 20, 2010 and there are two basic claims in the litigation.

__A. The ESA Imposes A Duty To Conserve Threatened And Endangered Species
__B. The 2008 10(j) Regulation Impairs, Rather Than Serves, Wolf Conservation
__A. FWS Unlawfully Predetermined The Outcome Of Its NEPA Analysis
__B. The Environmental Assessment Violates NEPA Because It Does Not Take A “Hard Look” At The Environmental Consequences Of The 10(j) Regulation
__C. The 10(j) Regulation May Have Significant Environmental Effects, Thus Requiring The Preparation Of An EIS
____1. FWS arbitrarily underestimated impacts to wolves
____2. Potential wolf killing under the 10(j) regulation is a significant environmental impact

This litigation is particularly timely as Idaho is preparing a proposal to kill 80% of the wolves in Lolo units 10 and 12 because the elk populations have not been meeting the IDFG’s 1999 objectives since the winter of 1996/1997. Those elk objectives are wildly optimistic and fail to consider the habitat declines which started in the 1970’s and continue to this day. The comment period for that proposal concluded yesterday, August 30.


  1. Virginia Avatar

    Again, the idiots at USFWS trying to make it easier to kill wildlife – the beings they are supposed to protect, as well as the fact that from what we are hearing, the elk are not devastated as reported by RMEF.

    1. jon Avatar

      A cow’s life seems to be worth much more than native wildlife. Would you believe that? It’s truly disgusting. Why is the first solutions always KILL KILL KILL? These ranchers should be held accountable and forced to find non lethal solutions when it comes to protecting their livestock from predators.

    2. Save bears Avatar
      Save bears


      In reality, how are you going to force them to do anything? Nobody has been able to force them to treat their livestock any better than they have for the last 150 years, so how are you going to force them to find non-lethal methods. Most of us that have worked in the field have talked at great length to try and change their practices and it has had little impact…so far, but there are a few than have changed, but not nearly enough..but again, how do you force anyone to do anything they don’t want or see the need to do? And do just say, retire their leases, that ain’t going to happen for the most part, and then it still leaves the large land owners..

  2. JimT Avatar

    The problem lies in your last sentence. The ranchers, so far, know the BLM and USFS will not only not retire the permits, they have done a terrible job enforcing the conditions. The balance of power has always been with the ranchers, and that is ass backwards from a regulated-regulator dynamic.

    Change the enforcement dynamic. Get the damned paid for by welfare ranching money politicians out of the agency management business; let the front line agents do their damned jobs, or get rid of them.

    And get rid of the subsidies.Let public land ranchers pay the same costs as private land ranchers, and if they can’t make a living, tough. Time we started letting agricultural interests pay their own way as free enterprise businesses instead of welfare industries.

    1. Save bears Avatar
      Save bears

      All well and good Jim,

      Now how are you going to do it?

    2. Elk275 Avatar

      Jim T

      Nearly every senator or Congressman/women in a western state is going to go to support a rancher/farmer in there state. There is not much that can or will be done. The more one pushes the worst it is going to get.

      I was talking with a friend of mind this morning that has 13,000 acres on the edge of the Missouri Breaks and he has grazing leases on BLM land. The interesting thing is that the only practical access to the BLM lands is through his ranch and the BLM has to ask him permission to access they lands or charter a helicopter. Permission is granted on a case by case basis. His control the public’s land; his land is in Block Management.

      I feel that the wolf issue and similar other similar issues is going to effect any future wilderness designations or roadless protections.

  3. inthefurwest Avatar

    perhaps i missed something, wasn’t the brief filed to prevent the STATES from killing wolves to help herds that are in trouble recover ??. As much as everyone would like to simply stick this one on the ranchers that is not what it is addressing. As i understand it the rule they are trying to address simply states that if the herd in question is being kept from recovery BECAUSE of wolf depredations then they can be removed, it does not say they can be killed BECAUSE wolves are the problem.
    Any judge worth his salt will be able to make a quick ruling on this one.

  4. JB Avatar

    I was just reviewing the 10(j) rule that is being challenged and noted this (below) gem. I’ll have to keep this handy for future conversations about the dramatic impacts wolves are having…

    “Current information indicates that wolf predation alone is unlikely to be the primary cause of a reduction of any ungulate herd or population in Idaho, Montana, or Wyoming (Bangs, et al. 2004, pp. 89–100). No populations of wild ungulates occur in Montana, Idaho, or Wyoming where wolves are the sole predator. Wolf predation is unlikely to impact ungulate population trends substantially unless other factors contribute, such as declines in habitat quality and quantity…”


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Ken Cole