When Wolves Are a Third Rail
A legally nerdy deep dive into how now is an excellent time for emotion.
I know poets whose work flows from science headlines; how octopi have three whole hearts. I’ve read science writers whose prose sings:1
“For tens of millions of years these atoms were spread through the Universe in a thin cloud. But over time they began to condense into clumps, and these clumps grew larger and denser, to collapse into themselves, until finally the pressure at their centres increased so much that they ignited. In the nuclear furnace at hearts of these first stars, atoms began to fuse together.”
Deep Water: The World in the Ocean. James Bradley.
I’m neither. But I keep coming back to the wolves.
There were no wolves where I grew up. There were some deer, an enormous number of chipmunks, and racoons that bedeviled my dad. Their tiny hands managed to get into our trash cans and laughed at my dad’s engineering degree. Perhaps they saw his elaborate trash containment system built as a small half sized shed next to our garage as playground equipment. A box with a fun lid to open, its hinges squeak free thanks to their little thumbs, and the prize for their ingenuity was delicious trash that only a suburban 80s family could create.
I often wondered if they worked in tandem. Was it one large racoon or a merry band, standing on each other’s shoulders? Once, on an “easy” hike to Hawk Mountain, my husband and I came upon a rock scramble. Apparently, the hike was deemed easy because it only had one scramble. To be fair, it was only a 10 foot stretch of scramble. Yet, in our defense, 6 of the 10 feet of scramble was a 90 degree angle, requiring both upper body strength and a level of faith in my coordination that I did not possess.
We’d been behind a trio of women hiking for a quarter mile or so. One of them was so enthusiastically supportive of her friends it felt like too sweet of an easter candy on my teeth. I told myself we’d pass them on the next broader stretch. Or that soon we’d be at the rocky top of Hawk Mountain, gazing at the raptors. We’d be rapt by their flight. Is that how they came by that name? Perhaps the captors of our rapt attention became known as raptors.
But once we’d come to that scramble, the sweet woman’s sweetness became a punch of survival. My feet stood on the air of her encouragement. I wonder if part of her positivity is still lodged in my lungs, snuggled like a cat under the warm pink blankets of my tissues.
I wonder too if racoons cheer each other on in their trash escapades. I accomplished what felt impossible with those other bandits, stealing both the bright sunshine and the soft shadows from the woods that day.
Don’t tell my dad, but I fed the racoons. They’d come right up to the screen door on nights I sat on the kitchen table, snacking on frosting from a can and watching the small black and white TV tucked in a corner of the pantry, hidden behind wood paneled sliding doors. I fed them small scraps from the fridge, little bits of bread, an occasional bit of fruit. I put out water too for them. Even though summers by the shore were so cool at night we needed sweaters in July.
The wolf is new. One not banded before by the Parks and Wildlife Service. They can tell from its poop. It was full of new DNA.
I’m unclear on how long the new, unbanded, not previously released wolf was roaming in Colorado before it pooped. The discovery may be related to the nine new “riders” they hired to ride a ridge – keeping wolves from the livestock. Those riders are part of an effort to reduce livestock loss so that more wolves can be reintroduced.
I started writing this piece about wolves for an entirely selfish reason. There’s an important court case on wolf hunting that is currently stalled but set to begin winding again through the federal courts. And look, it’s hella confusing. Once as a legal assistant, I worked on a merger of two companies that was so complicated the partner had to draw me a diagram of it. “Don’t lose that,” he said. “I can’t draw it again.” I thought I was in trouble for wasting his time until he sheepishly looked up and me and said “It’s just too confusing. Wait, can you make a copy of it for me?”
My confusion in this set of cases partly stems from the variety of federal agencies involved with wolf population management. The other part stems from how the sets of court cases are intertwined. I could talk all day about federal court jurisdiction and comity, I have in the past.2
Such lawdork topics are way more nerdy-sexy-fun when they involve corporate shareholder suits (oh hello there, business judgment rule, you sure are looking fine today). When it comes to wild things, jurisdiction stops being a mental playground and gets electrifying pretty quickly. So, indulge me in a brief moment of legal education.
Normally3 state and federal laws usually coexist in a neighborly fashion. Everyone gets along fairly well. However, to keep things sort of orderly, the Supremacy Clause says that federal law on some issues will supersede or preempt state law. This holds true, and gets confusing, as to whether that law is made be legislators or those expanding and interpreting law, such as courts and regulators. In essence, the feds win on law.4
There are exceptions. One of them is where a dispute creates multiple lawsuits from a similar set of facts. Usually, (so many wiggle words here, let’s forgive the indefiniteness of the language in service to brevity, yes?), the rule is that whichever case is filed first wins the day, and the other cases either must way (via a stay of the proceedings) or may get consolidated with the first filed case. Unless the cases are filed in both state and federal courts and the issue revolves around state law. Then, under the principle of comity, the federal courts stand back and let the states go forward.
And now we are woefully underprepared for an important issue on wilderness management. And nevertheless, we will persist.
Wolves were listed as an endangered species in 1967. They were hunted out of existence in the eastern portions of the US due to livestock issues (they do tend to eat them). Some survived out west due to, for lack of a better concept, the vastness of it.
Wolves in the great north woods however, survived not because of vastness but because of density. The woods in Minnesota are so dense and complex that they sheltered the wolves. And wolf species seemed to forgo territorialism to some degree. The DNA of those great north woods surviving wolves shows a mix of species.
In those great north woods states, Minnesota, Michigan and Wisconsin, state wolf management programs began in the 1960s and continued forward, now under the auspices of the US Geological Survey. USFWS manages the endangered species act and listed wolves as endangered in 1967.5 The USFWS also manages grants that help states and tribes prevent livestock reduction from wolf reintroduction programs. Well, at least for now it does. According to the New York Times, the Wolf Livestock Demonstration Project Grant Program (which pays farmers for loss of livestock and helps pay for programs that find solutions for wolves and livestock to occupy neighboring territory) is among those which DOGE has slated for review.
Wolf tracking in other states is managed by, confusingly, other governmental agencies. For example, in Montana it’s the USDA’s resource conservation service. Their initiative is to conserve livestock from wolf predation.
Wolf management and population programs in other states may be managed by the states themselves. This includes Colorado, where wolves are thought to be migrating from Wyoming.6 In North Carolina, it’s the USFWS again.
But our story focuses on those great woods up north.
In the early 1990s, an affiliation of tribes sued for their treaty rights.
They were successful in obtaining a ruling stating that their treaty rights included not only the right to hunt and fish on the treaty lands, but to do so in a manner that preserved populations. They later moved to clarify those court cases, as the wolf was listed as endangered when the decisions were issued. Among the tribes involved were the Ojibwe (sometimes called the Chippewa when referring to legal documents and matters and more commonly used in the US).
In other words, the tribes have not only the rights to remove but also to protect.7
Ma’iingan (Wolf) and Ojibwe are to be considered relatives whose fates are intertwined. Ma’iingan and Ojibwe have lived parallel histories, suffering from the effects of colonization, the decimation of wolf populations and decline of tribal culture.
The state and the tribes agreed that consultation should take place and all attempts at consensus should be made in any wolf management action taken by the state.
In 2021, the USFWS delisted wolves as an endangered species. Wolf management moved to the states who then created groups to manage wolf hunts based partially on population data. They were supposed to have included Indigenous tribes. That failed to happen.
This was the instigation of another lawsuit by the tribes. In Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin et al the tribe moved to reassert their rights. On April 26, 2022, the presiding Judge, James Peterson, ruled that due to the USFWS relisting the wolf as endangered and the district court case on that subject, the case was now moot. He allowed the plaintiffs to have the case dismissed without prejudice (allowing it to be revived if needed) rather than wait for a second case involving the USFWS relisting process.
At this point, we are looking at two federal cases interlapping, the first of the jurisdictional issues raised in that legal bit above. The USFWS’s order originally referred to portions of the US. USFWS had to amend its order to take into account the gray wolf in Minnesota. Confusingly, a wolf can be endangered in one state, say, Minnesota, but not another, such as Utah. How the USFWS oversaw this is the subject of the second lawsuit. In short, state laws and federal laws and when what can overcome who.
The USFWS’s order references a district court case, that’s a federal trial court. The case it mentions is now on appeal. It involves, in part, the deference given to an agency concerning resource management. Many states and various parties have sought to join in the appeal of the case, including the State of Utah.
At the time Utah intervened in the case, it had a pending request to the US Supreme Court on a wacky bit of procedure wherein they asked that the public lands in Utah be managed by Utah, not by the various state parks and bureau of land management.
Seems okay, right? Yah, but. Their briefs failed to acknowledge that some of the land they sought to manage was tribal land apparently disputed by the state of Utah. Their pleadings could be likened to a wolf in sheep’s clothing. Sounds like a case about land management, talks like a case about land management, walks like a case about stripping people of their rights. Just as the Ojibwe said.
So, it’s about wolves. But it’s also not about wolves.
Today, my creative nonfiction is not about octopuses’ hearts or clouds, like the writers I admire. I’ve always thought my writing occupied two rails, one of law/logic and the other of poetry .
I often held myself back when writing briefs and articles, worried that I’d risk sounding to saccharine, too gooey. My legal arguments had to remain fully inside the lines of logic and order. Two separate rails running alongside the tracks: one for logic, the other for emotion. Yet, those cases about land and wolves hold logic hostage to their intent: more rights for states, less for people, almost none for wolves.
In politics (the thing I did before I did the thing with law), there was a concept of a third rail. A topic too touchy, to protected, to be brought into negotiations. The concept comes from some train lines that gather their electricity from a protected line that runs next to the two straight never intersecting ones. The third rail is pure power. Touch the third rail and the possibility for electrocution is imminent. When I was a baby lobbyist, that topic was social security.
Maybe wolves are my third rail. But instead of risking electrocution by touching it, the result is a fusion of logic and emotion. I can stand my logic on emotion, and it can hold me, like a band of racoons climbing into our garbage. Or the sweetness I feared can lift up an argument, like the sweet woman’s sweet words.
If that is a possibility, then now is an excellent time to find that third rail. Now is a time I think when a lot of folks are finding it. Whether in cuts to government programs, or in ketamine-dosed chainsaw wielding oligarchs forcing government workers to send five pointed memos.
We are in the time of the third rail. There is no one thing that’s a third rail; It’s not social security. It’s everything.
What I mean to say is, if you are feeling unhinged by all that is going on, I hope you find your third rail and it fuses all the parts of you together. There’s never been a better time.
Ask a wolf. I’m confident they’d love you to get in the ring. If nothing else than to keep Utah out of it. The Supreme Court denied their wacky request. Nothing is impossible.8
I’m a bad human and did not take down the page number. I’ll update this note with the correct one.
Margaret E. Juliano, Stalemate: The Need for Limitations on Regulatory Deference in Electric Bankruptcies, 20 BANKR. DEV. J. 245, 249 (2003).
We’ll need to assume for the purposes of this exercise that there is a normal and we might get back to it.
This is the briefest of brief explanations and not suitable for use in your PolySci papers. Email me instead friends.
“When Congress transferred the Division of Wildlife Research from the USFWS to the National Biological Survey (later the National Biological Service), the Wolf and Deer Project transferred with it, and then to the U.S. Geological Survey.” The USGS manages tracking wolves. The USFWS manages listing and delisting wolves.
Ojibwe Perspectives Toward Proper Wolf Stewardship and Wisconsin’s February 2021 Wolf Hunting Season, Gilbert, Jonathon, et al., Front. Ecol. Evol. , 13 April 2022 Vol 10, available at https://www.frontiersin.org/journals/ecology-and-evolution/articles/10.3389/fevo.2022.782840/full
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22o160.html