10(j)-Rules: The Cost of Quieting the Oppositions Howling

By: Gabe Gonzalez

Wolves are returning to Colorado, and with them comes a 10(j)-rule. Many may wonder what exactly a 10(j)-rule is, whether they are effective, and how it will affect wolf reintroduction in Colorado.

In 1982, to lessen political objections to species reintroductions, Congress amended the Endangered Species Act (ESA) to include § 10(j), effectively lowering the restrictions and prohibitions commonly associated with listed species. Traditionally, the ESA prohibits the "take" of a listed species, defining “take” as harassing, hunting, shooting, capturing, trapping, killing, collecting, wounding, harming, pursuing, or attempting any of these actions. Section 10(j) authorizes the Secretary of Interior to designate reintroduced populations of listed species as experimental when (1) the introduced population is wholly separated geographically from nonexperimental populations of the same species; (2) the release will further the conservation of the species; (3) the Secretary determines whether such population is essential to the continued existence of the species. Under a 10(j) experimental designation, both the take prohibitions and consultation requirements of the ESA are relaxed, lessening the regulatory burdens associated with endangered species. Although § 10(j) was added to the ESA to lessen political objections, these objections are still commonplace, coming from every side of the aisle, with many successful challenges coming from environmental organizations who believe the 10(j)-rules are too lax and threaten the success of the recovery efforts.

Whether a 10(j)-rule is successful depends on many contributing factors, some of which are illustrated in the following examples. The most well-known 10(j) success story is the reintroduction of gray wolves into the Idaho and Yellowstone National Park. The trophic cascade that followed the reintroduction may be a well-known phenomenon; what is not is the legal challenges that almost thwarted the reintroduction. After the reintroduction efforts began, the Wyoming Farm Bureau and its affiliates used the language of § 10(j) to challenge the reintroduction; an attempt that was initially successful but later overturned by the 10th Circuit. Despite the legal challenges, the reintroduction of gray wolves into Idaho and Yellowstone National Park is considered one of the most successful reintroduction efforts to date, with populations estimated to be over 1,900 individuals, expanding farther west into Oregon and Washington.

Similarly, the reintroduction of the Mexican gray wolf into the Arizona and New Mexico has seen signs of success but not without hiccups along the way. After being listed as an endangered subspecies in 1976, United States Fish and Wildlife Service (USFWS) finalized the Mexican Wolf Recovery Plan in 1982. In 1998, USWFS completed a 10(j)-rule with reintroduction efforts beginning later that year. The recovery plan and accompanying 10(j)-rule faced immediate and persistent legal challenges, with early unsuccessful challenges from the livestock industry. Despite the reoccurring legal challenges the 10(j)-rule has faced, the reintroduction efforts have shown signs of success, with the population climbing from 11 released in 1998 to 241 in 2023. The relaxed restrictions afforded by the 10(j)-rule have allowed USFWS and cooperating agencies to instigate adaptive management techniques such as cross-fostering to promote genetic diversity.

The California condor is another species whose recovery has been aided by a 10(j) designation. Unlike the other examples, California condors were reintroduced with a 10(j)-rule not to appease livestock producers or landowners but to allow biologists flexibility in recovery. The rule enables biologists to handle the condors to test for and treat lead poisoning, a major cause of the condors near extinction. Twenty years after the reintroduction first began, California condor numbers have risen to an estimated 300 wild individuals today due partly to the flexibility afforded by the 10(j)-rule.

The attempted recovery of the red wolf stands out as an example of the limitations associated with a 10(j) designation. The recovery of the red wolf initially showed signs of success, with the experimental population released into Alligator National Wildlife Refuge (ANWR) reaching a peak of 120 individuals 25 years after the reintroduction efforts began. Over the following nine years, the population in ANWR quickly fell to an alarming eight red wolves. The rapid decline can be attributed to numerous policy changes by the ANWR and USFWS. These policy changes resulted in a successful legal challenge from the Red Wolf Coalition that alleged the USFWS policy change that increased permits to landowners, which authorized landowners to kill red wolves, violating the ESA by failing to protect red wolves. The failure to recover red wolves illustrates that the success of species recovery is not entirely dependent on the presence of a 10(j)-rule itself but on whether the management efforts and decisions are consistent with the nature and intent of § 10(j) and the ESA. The 10(j)-rule continues to be a valuable tool in the conservationist's toolbox, but as with any tool, its effectiveness depends on how it's applied.

Like the above examples, Colorado’s wolf reintroduction will include a 10(j)-rule designating the population as experimental, awarding Colorado Parks and Wildlife (CPW) increased management flexibility. The 10(j)-rule would allow reintroduced wolves to be hazed, killed, or relocated by CPW as a designated agent of USFWS for domestic animal depredations. Additionally, under special conditions, the public could harass or kill wolves attacking livestock, allowing ranchers in Colorado to feel slightly more comfortable with the impending reintroduction.

This 10(j)-rule may appear to some to be far too lax. While that may be the case, the purpose of this 10(j)-rule is to afford CPW management control; in essence, the 10(j)-rule is the floor. Instead, the Colorado Final Wolf Restoration and Management Plan outlines how CPW has decided to manage the reintroduced wolves. The management plan does not raise the bar much higher. The plan suggests that nonlethal methods “should” be employed by landowners who observe wolves in the act of chasing or attacking livestock before lethal measures are taken but does not mandate such measures. This may appear to do little to protect the wolves by lessening the protections to an alarming degree; however, it is important to remember that was the intent behind the passage of § 10(j). Without it, our courts would likely be inundated with lawsuits challenging every proposed reintroduction effort.

It is impossible to get everyone to agree on anything, and the reintroduction of a predator species is no different. While environmental organizations feel that 10(j)-rules do not protect species sufficiently, livestock raisers likely believe the same 10(j)-rule needs to be extended further to safeguard their interests adequately. Section 10(j) promotes compromise, ensuring that while no one may be thrilled, all parties can work together to ensure the recovery of wolves in Colorado.