D.C. District Court Overturns Decision to Remove Gray Wolf from Endangered Species List

Memorandum and Opinion (111 pages) and Order.

ORDERED that, because the rule Revising the Listing of the Gray Wolf (Canis lupus) in the Western Great Lakes (the “Final Rule”), 76 Fed. Reg. 81,666 (Dec. 28, 2011), is arbitrary and capricious and violates the Endangered Species Act of 1973, as amended, 16 U.S.C. §§ 1531
et seq., the Final Rule is VACATED and SET ASIDE; and it is further ORDERED that the rule in effect prior to the Final Rule vacated by this Order, namely, the rule regarding Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607 (Mar. 9, 1978),
is REINSTATED to govern management of gray wolves in the nine states affected by the vacated Final Rule, pursuant to the Endangered Species Act;

Freep coverage here.

Fletcher & Reo Response Paper to Sanders on the Wisconsin Wolf Hunt

Matthew Fletcher & Nick Reo published a short paper, “Response to Sanders: Ma’Iignan as Property,” at the Wisconsin Law Review Online. Jason Sanders’ excellent law review note that started all this is here.

Here is an excerpt:

American law has long recognized the state as the owner of wild game within a state’s borders, including gray wolves (or “ma’iingan” in Anishinaabemowin), within the States of Wisconsin, Minnesota, and Michigan. However, as Anishinaabe scholar Jason Sanders forcefully demonstrates, the Anishinaabeg—indigenous people of the western Great Lakes known as the Ottawa (Odawa), Potawatomi (Bodewadmi), and Chippewa (Ojibwe)—considered ma’iingan siblings, not property. One does not hunt one’s siblings.
***
Sanders’s paper is a fine example of cutting edge, pragmatic legal scholarship that will allow the stakeholders, in time, to push through the adversarial rhetoric and move into a more useful cooperative mode. Federal Indian law, often through the assertion of American Indian treaty rights, has historically been a powerful engine for change. Treaty rights cases arising from Anishinaabeg treaties often do not result in a winner-take-all outcome, with either tribes or states prevailing over all opponents. Instead, the rule of law as exemplified by Indian treaty rights forces state interests to reckon with the interests of a discrete and insular minority. As such, regulation of hunting, fishing, gathering, and other activities on or near Indian country is an intergovernmental affair, dominated by cooperative fact finding and negotiation.

 

Wisconsin Law Review Publishes Jason Sanders’ “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt”

Jason Sanders has published “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt” in the Wisconsin Law Review.

Here is the abstract:

In 2012, Wisconsin authorized the first state hunt of gray wolves. Wisconsin’s interest in wolf depredation is legitimate: the growth in wolf population has exponentially increased human-wolf conflicts and state expense. Yet, Wisconsin shares these wolves; 83 percent of gray wolves reside on Ojibwe reservations or on territory ceded by the Ojibwe, where the Tribes still have resource rights. The Tribes vehemently oppose the wolf hunt. The Ojibwe maintain a strong cultural kinship with wolves and have traditionally prohibited wolf hunting. The Tribes named wolves a “tribally protected species,” asserting a right to protect all the wolves shared with Wisconsin. Historically, the Tribes and the State cooperatively managed shared resources. However, the State initiated the wolf hunt despite tribal protestations, instigating the first break from cooperative management in decades. Both sovereigns have legitimate and conflicting interests and appear to risk their first major treaty rights litigation in decades.

This Comment analyzes the extent of each sovereign’s wolf rights in light of biological research and existing Indian law precedents. The first issue is the scope of the State’s obligation to respect the Tribes’ sovereign rights to protect and perpetuate reservation wolf packs. The second issue is the extent of the Tribes’ rights to protect ceded-territory wolves away from reservations. This Comment argues that the Tribes can protect and perpetuate reservation wolves as a component of inherent sovereignty. Wisconsin must implement a wolf policy that respects that sovereignty, including a hunt-free “buffer zone” of some wolf territory directly adjoining the reservation. However, the Tribes’ claim to protect all shared wolves is untenable, as tribal rights over wolves away from the reservation are much weaker. But the Tribes have rights correlated to those wolves and are entitled, at minimum, to a policy that ensures species survival; additionally, the Tribes can consider other options to protect wolves. Ultimately, this Comment proposes that both sovereigns can and should resolve this conflict through negotiation, continuing the tradition of cooperative management, and avoiding lengthy and expensive litigation.

Nick Reo and myself have a short response to the paper coming out in the online version of the Wisconsin Law Review soon.

Jason Sanders on Wisconsin’s Mi’ingan Hunt

Anishinaabe law student and scholar Jason Sanders has posted, “Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt,” his student note forthcoming in the Wisconsin Law Review.

Here is the abstract:

In 2012, Wisconsin authorized the first state hunt of gray wolves. Wisconsin’s interest in wolf depredation is legitimate: the growth in wolf population has exponentially increased human-wolf conflicts and state expense. Yet, Wisconsin shares these wolves; 83 percent of gray wolves reside on Ojibwe reservations or on territory ceded by the Ojibwe, where the Tribes still have resource rights. The Tribes vehemently oppose the wolf hunt. The Ojibwe maintain a strong cultural kinship with wolves and have traditionally prohibited wolf hunting. The Tribes named wolves a “tribally protected species,” asserting a right to protect all the wolves shared with Wisconsin. Historically, the Tribes and the State cooperatively managed shared resources. However, the State initiated the wolf hunt despite tribal protestations, instigating the first break from cooperative management in decades. Both sovereigns have legitimate and conflicting interests and appear to risk their first major treaty rights litigation in decades.

This Comment analyzes the extent of each sovereign’s wolf rights in light of biological research and existing Indian law precedents. The first issue is the scope of the State’s obligation to respect the Tribes’ sovereign rights to protect and perpetuate reservation wolf packs. The second issue is the extent of the Tribes’ rights to protect ceded-territory wolves away from reservations. This Comment argues that the Tribes can protect and perpetuate reservation wolves as a component of inherent sovereignty. Wisconsin must implement a wolf policy that respects that sovereignty, including a hunt-free “buffer zone” of some wolf territory directly adjoining the reservation. However, the Tribes’ claim to protect all shared wolves is untenable, as tribal rights over wolves away from the reservation are much weaker. But the Tribes have rights correlated to those wolves and are entitled, at minimum, to a policy that ensures species survival; additionally, the Tribes can consider other options to protect wolves. Ultimately, this Comment proposes that both sovereigns can and should resolve this conflict through negotiation, continuing the tradition of cooperative management, and avoiding lengthy and expensive litigation.

IPR on Tribal Treaty Rights and Wolf Hunts

Here.

An excerpt:

An animal that’s a symbol of the wild, and once nearly exterminated, has repopulated the upper Great Lakes region. In fact, the gray wolf exceeded recovery goals, times ten, over the last decade.

And now wolves are doing so well, states that manage them are opening hunting seasons on them. Some say there are just too many to coexist with people.

But a few Indian tribes argue that their treaty rights call for wolves to fill every niche in the landscape.

Wolf Brother
In the upper Great Lakes, Indian tribes still have rights to hunt, fish and gather plants in wide swaths of territory that go back to treaties signed in the mid-1800’s. Usually it’s pretty straightforward for the tribes and the states to agree on how many fish or deer to take.

But with wolves, tribal officials say, it’s different. Their creation stories tell how the wolf was sent as a companion for the people. Tribes of the Great Lakes consider the wolf as kin. And the Creator told them the fate of wolves and the people are intertwined, as one goes, so goes the other.

“As we see the wolf returning or gaining strength, just as we Ojibway, Anishinaabe people have, we see that relationship,” says Kurt Perron, chair of the Bay Mills Community in Michigan’s Upper Peninsula. “So that’s what concerns us with the hunt.  It’s almost like you’re hunting our brothers.”

Now maybe that’s mostly symbolic, but not entirely. Because Perrin thinks if top predators are removed from the ecosystem, the effects will cascade through other species. And eventually humans may be affected.

Wisconsin’s Proposed Wolf Hunt Approved by State Assembly

The New York Times has covered the State of Wisconsin’s proposal to introduce a wolf hunting season here and here. These articles bring tribal concerns over the proposed hunt to center stage. After Scott Walker approves this bill, it will be interesting to track the response that follows. In this instance, can tribal moral objections be addressed and reverse this vote via legal argumentation/legal channels? Time will likely reveal the answer to that question.

(As a side note, GLIFWC is misidentified as GLIFGC in both articles.)