DENVER (CN) — New Mexico asked the 10th Circuit on Wednesday to uphold a preliminary injunction banning the U.S. Fish and Wildlife Service from releasing endangered Mexican gray wolves in New Mexico without a state permit.
The New Mexico Department of Game and Fish was granted a preliminary injunction in June 2016. U.S. District Judge William Johnson, in Albuquerque, agreed that Fish and Wildlife violated the Administrative Procedure Act by releasing two wolves in April 2016 without a state permit. He ordered Fish and Wildlife to stop releasing Mexican wolves into the state without following New Mexico guidelines.
Fish and Wildlife has been reintroducing the Mexican gray wolf into Arizona and New Mexico since 1998. It argued that the federal government has the right to bypass state laws when an endangered species is at stake.
When New Mexico denied two Fish and Wildlife applications for two wolf releases in 2015, the Service claimed, its hands were tied, and its duty to protect and replenish an endangered species trumped its obligations to the state.
Arguing for the Fish and Wildlife Service on Wednesday, McCrystie Adams with Defenders of Wildlife blamed New Mexico for the dispute. She said “maximum practical cooperation” is needed between governments in endangered species cases such as this one.
“It’s New Mexico’s attempt to cut that off,” Adam told U.S. Circuit Judges Jerome Holmes, Scott Matheson and Carolyn McHugh.
McHugh asked Adams why Fish and Wildlife couldn’t have delayed releasing the wolves until it got state permits.
“The Service made the determination that time did matter here,” Adams said.
Department of Justice attorney Rachel Heron told the court that the release was “explicitly authorized” by the Endangered Species Act.
Heron said New Mexico’s claim of irreparable injury didn’t stand, and that its claim that introducing more wolves could hurt New Mexican elk herds was unsubstantiated.
“The mere possibility of harm does not suffice,” Heron said. She said plans for the entire release involve only “about 20 wolves, most of which are not even expected to survive, the majority of which are going to be pups.”
“You can’t just infer harm,” Heron said. “New Mexico hasn’t done anything to suggest that the elk population is anything but abundant.”
Lisa Reynolds with the Colorado Attorney General’s office also spoke for Fish and Wildlife.
“We’ve seen over and over again that cooperation is critical to recovery,” Reynolds said.
Matthias Sayer, representing New Mexico, said the problem is not specific to this set of wolves, whose exact numbers had yet to be determined by Fish and Wildlife. He said the lack of information made it difficult to anticipate how the state would deal with the wolves in the future.
He said the state informed Fish and Wildlife “that it couldn’t issue the permit without information.”
“There’s information they need in order to conduct their business in New Mexico,” Sayer said.
“[Fish and Wildlife] hasn’t said, ‘We’re going to release four wolves at this date.’ That lack of information causes the problem.
“New Mexico doesn’t know how many wolves the [Service] intends to release. If they released four wolves, this would be the irreparable harm, if they release 200 wolves, this would be the irreparable harm.”
Judge Holmes asked: “So it’s a management problem. You can’t properly manage [them]?”
“Yes,” Sayer said.
Fewer than 100 Mexican gray wolves are believed to live in the wild in the United States. Fish and Wildlife’s population estimate of 97 has grown slowly since it began reintroducing them in the 1990’s. They are the most endangered species of wolf in the world.
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