The federal government has said it has no plans to change the designation until the wolves are taken off the Endangered Species List.
The Fish and Wildlife Service, along with Idaho and Montana, attempted to take Idaho and Montana wolves off the list 2-years ago. Last summer Molloy ordered protection to be re-instated.
Environmental groups are still fighting over the question. Friday, Molloy issued an order telling both sides to present arguments answering whether today's wolves are still experimental populations, or whether they have cross-bred in the three recovery areas in Wyoming, Idaho, and in Northwestern Montana with wolves from Canada.
Molloy ordered legal briefs to be filed by February 22nd.
NOTE: the link provided in the above article to read a copy of the Judge's order does not work. Here is a copy of it from the Wildlife News in pdf.
previously on WHAP 1/29/08: lawsuit over 10(j)
The whole 10(j) reintroduction should have never started. End it, IMO.
I found this article has a good explanation of the 10(j) lawsuit:
A federal judge in Montana is asking parties to a lawsuit over gray wolves if the animals should lose their experimental, nonessential designation and revert to a fully endangered or threatened designation.
Such a move could torpedo Idaho's request to kill wolves in the Lolo Zone.
If the case is dismissed and wolves in Idaho lose their experimental designation the state could lose its ability to kill wolves for preying on deer and elk herds or for preying on livestock.
"Here is the actual text of the judge's latest wolf decision. I think he is also saying a valid 10j population has not existed for some time, although he did not resurrect the argument that the original 10j reintroduction was not proper. Molloy’s order on experimental wolves
I think he may have cut the Gordian Knot. It is unclear still to me what the effects of this will be — who actually won. Strictly speaking, the government won (I mean on paper)."
Should the gray wolf's legal status be governed by maps or mates?
At stake are Montana and Idaho's ability to have game wardens shoot wolves they suspect of killing too many elk in the Bitterroot Mountains along the state border.
On Tuesday, lawyers for the U.S. government and a coalition of wildlife advocates filed their answers with U.S. District Judge Don Molloy in Missoula.
The states want to use a part of the federal Endangered Species Act called the 10(j) rule for permission to cull the wolves. The rule gives the agency flexibility to kill endangered species when they threaten livestock or big game, although it does not allow public hunting.
"If an introduced population overlaps with natural populations of the same species during a portion of the year, but is wholly separate at other times, the introduced population is to be treated as an experimental population at such times as it is wholly separate," Harbine wrote. "When experimental and nonexperimental populations overlap - even if the overlap occurs seasonally - section 10(j) populations lose their experimental status."
And if that's true, Harbine followed, the Fish and Wildlife Service can't allow Montana and Idaho to kill wolves threatening big game because all the wolves are completely protected under the ESA.
Molloy ordered both sides to bring oral arguments before him on March 24.
The ESA makes it clear that the 10(j) provisions only apply to populations that are “wholly separate geographically from nonexperimental populations of the same species”.
(j) 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.
Click here to read "Copies of the Briefs" from the Wildlife News