Pending before the U.S. Court of Appeals for the Tenth Circuit is the U.S. Fish and Wildlife Service’s (“Service”) appeal from a district court decision enjoining the Service from releasing Mexican wolves into New Mexico without the requisite state permits. In June 2016, the New Mexico Department of Game and Fish (“Department”) challenged the Service’s intended release of Mexican wolves into an experimental population within the state, without first obtaining the required permits from the Department.  New Mexico moved for a preliminary injunction, which the U.S. District Court for the District of New Mexico granted, after concluding that the Department had shown a likelihood of success on the merits, that it would suffer irreparable injury in the absence of an injunction, and that the balance of harms and the public interest weighed in favor of an injunction.

Oral argument of the appeal is scheduled for January 18, 2017. Notably, eight briefs were filed by amicus curiae in support of the Department, including one by the States of Colorado, Alabama, Alaska, Arizona, Arkansas, Idaho, Kansas, Michigan, Montana, Nebraska, Nevada, New Hampshire, Oklahoma, South Dakota, Texas, Utah, Wisconsin, and Wyoming.

The Mexican gray wolf subspecies (Canis lupus baileyi) has been listed as endangered under the Endangered Species Act (“ESA”) since 1976.  A binational captive-breeding program between the United States and Mexico was established in the late 1970s, with the capture of the last remaining Mexican wolves in the wild.  The captive breeding program originated with seven founding wolves, and has grown to approximately 248 wolves in 55 facilities in the United States and Mexico. In 1998, the Service began releasing surplus wolves from the captive breeding program into the wild.  The wild population – categorized as a non-essential experimental population under the ESA – now contains approximately 100 wolves.

Under New Mexico law, the importation and release of non-domesticated animals, including Mexican wolves, requires a permit from the Department. For activities relating to the population of Mexican wolves that have occurred in New Mexico since the first release in 1998, it has been the Service’s practice to first obtain approval from the Department.

In 2015, the Service applied for the requisite permits in order to import and release wolves into New Mexico. The Department denied the permits for various reasons, including that the Service had not developed a comprehensive, up-to-date management plan regarding the species.  The Service indicated in October 2015 that it intended to move forward with the planned releases, asserting that it did not have to comply with the Department’s permitting requirements.  The Department thereafter sued the Service, alleging the Service violated, among other things, the ESA and the Service’s own regulations.