Endangered Species Act
10j Rule as written
Populations.ó For the purposes of this subsections, the
term "experiment population" means any population
(including offspring arising solely from there from) authorized
by the Secretary for release under paragraph , but only
when and at such times as, the population is wholly separate
geographically from non-experiemental populations of the same
[A] The Secretary
my authorize the release )and the related transportation)
of any population (including eggs, propagules, or individuals)
of an endangered species or threatened species outside the
current range of such species if the Secretary determines
that such release will further the conservation of such species.
[B] Before authorizing
the release of any population under sub-paragraph (A), the
Secretary shall by regulation identify the population and
determine, on the basis of the best available information,
whether or not such population is essential to the continued
existence of an endangered species or a threatened species.
[C] For the purposes
of this Act, each member of an experimental population shall
be treated as a threatened species; except tható
[I] solely for
the purposes of section 7 (other that subsection [a] thereof),
an experimental population determined under subparagraph [B]
to be not essential to the continued existence of a species
shall be treated, except when it occurs in an area within
the National Wildlife Refuge System or the National Park System,
as a species proposed to be listed under section 4; and
shall not be designated under this Act for any experimental
population determined under subparagraph [B] to be not essential
to the continued existence of a species.
 The Secretary,
with respect to population of endangered species or threatened
species that the Secretary authorized, before the date of
the enactment of this subsection, for release in geographical
area separate form other populations of such species, shall
determine by regulation which of such populations are an experimental
population for the purposes of this subsection and whether
or not each is essential to the continued existence of an
endangered or a threatened species.
(16 U.S.C. 1539)
for the Endangered Species Act in itís entirety.
for the 10j Rule in English.
Legal History of the Yellowstone Wolf Reintroduction
Naturally Occuring Wolves - Wolves from Canada have been
naturally re-colonizing northwestern Montana since the early 1980s.
Although lone wolves have been reported in and around the GYE for
the past 20 years, there has been no indication of a breeding pair
among them. Consequently, the final EIS "The Reintroduction
of Wolves to Yellowstone National Park and Central Idaho" issued
by the Fish and Wildlife Service in May 1994, and adopted
by the Interior Department a month later, directed reintroduction
of wolves to both areas.
American Farm Bureau Injunction - In December 1994, the
American Farm Bureau Federation and affiliates in Wyoming, Montana
and Idaho sued the Interior Department and requested an injunction
from the Federal District Court to prevent FWS from bringing wolves
to Yellowstone and Idaho. On January 3, 1995, Judge William
Downes of the Federal District Court in Cheyenne, WY denied the
request for an injunction, permitting reintroduction efforts to
proceed while the case was heard.
The wolves were being transported to release pen in Yellowstone
and Idaho in early January when the Farm Bureau secured an administrative
stay to delay release of wolves. On January 12, 1995, the
District Court denied the Farm Bureaus request and allowed
the wolves to be releases to acclimation pens.
(Photo of Release)
Initial Ruling of Illegal Reintroduction - Nearly three
years later, in December of 1997 the reintroduction case was heard
by Judge Downes. There were several plaintiffs in this lawsuit,
with widely varied motivations and tactics. Although the two sets
of interests disagreed, the cases were lumped together:
- American Farm Bureau Federation and its state affiliates.
They argued that the presence of occasional wolves in central
Idaho and Yellowstone meant that the government had unlawfully
reintroduced wolves, and that the best remedy was removal of
- Earthjustice Legal Fund (representing National Audubon
Society and three small local groups) alleged that because there
were naturally occurring wolves in central Idaho and Yellowstone,
the governments actions in establishing an experimental population
of wolves stripped the native wolves of greater protection of
which they were entitled. They sought an order declaring the governments
actions unlawful, the remedy being full protection as endangered
species for naturally occurring and reintroduced wolves.
On December 12, Judge Downes issued
his ruling that the reintroduction had been illegal, and that all
Canadian wolves should be removed. The ruling was based on his interpretation
of the ESA; since a few naturally occurring wolves already existed
prior to the reintroduction, they would lose protection under the
special "experimental, non-essential designation" (see
10(j) Rule) thus making the reintroduction illegal.
To read about the separate challenges made by various plaintiffs
(American Farm Bureau Federation, State Farm Bureaus, Mountain States
Legal Foundation, National Audubon Society, Predator Project, Sinapu,
Gray Wolf Committee, Cat and James Urbigkit) go to the broken down
full text of Wyoming Farm Bureau Fedn v. Babbitt at:
The National Audubon Society fell under fierce critisism due to
the consolidation, and reversed its position shortly after the district
courts decision to remove the wolves.
This ruling was problematic at a biological level, in that there
was the possibility of breeding between naturally occurring wolves
and reintroduced wolves. Removing reintroduced wolves would risk
removing naturally occurring wolves.
Final Reversal Ruling on the Appeal
Two groups that had devoted significant resources to the wolf reintroduction
effort (Defenders of Wildlife and National Wildlife Federation)
intervened in support of the Fish and Wildlife Services reintroduction
position. They were also joined by National Audubon Society. On
January 13, 2000, the 10th Circuit US Court of
Appeals reversed the decision made by Judge Downes in December of
1997. The final ruling reads:
"Because we uphold the challenged wolf reintroduction
as lawful under the Endangered Species Act and National Environmental
Policy Act, we need not address the propriety of the district
courts remedy. We REVERSE the order and the judgment
of the district court, VACATE the district courts
stay order, and REMAND with instructions to the district
court to enter an order upholding the challenged wolf reintroduction
For full text of the final hearing, go to:
For press releases on the January 13, ruling on the appeal, go
Implications of the Final Ruling
The 10th Circuit Court ruling both disposed of the various
arguments against the Fish and Wildlife Services actions,
and set an important precedent for future reintroductions. The court
held that the restrictive interpretation advocated by the Farm Bureau
and Earthjustice group "could actually undermine the Departments
ability to address biological reality
.and thus handicap its
ability to effectuate species recovery".
The ruling has enabled other recovery efforts, such as the northern
aplomado falcon in new Mexico and grizzly bears in the Selway-Bitterroot
area of Idaho, to move forward with confidence that legal roadblocks
will be less likely.
Michael Bean, Tenth Circuit Court Upholds Wolf Reintroductions,
Endangered Species Update, Volume 17 (2), March/April 2000, pp.