At Ninth Circuit, a Fight Over What ‘Recovered’ Means for Montana’s Wolves

For nearly two decades, hunters, conservation groups and the U.S. Fish and Wildlife Service (FWS) have fought in court over whether discrete populations of gray wolves should be listed as endangered or threatened. A case argued before the Ninth Circuit Court of Appeals on Tuesday could settle the question for wolves in Montana by reversing a lower-court ruling. 

In 2025, U.S. District Judge Donald Molloy ordered FWS to reassess the Northern Rocky Mountain wolf, a distinct population segment in Montana, Idaho, Wyoming and parts of Washington, Oregon and Utah. The agency had determined that the population did not require federal protection after conservation groups petitioned to have the wolves relisted. Molloy did not relist them; he sent the analysis back to the agency. The population is the only distinct population segment in the contiguous states without federal protection. Elsewhere in the lower 48, wolves are listed as endangered, except in Minnesota, where they are threatened. 

After the ruling, the Sportsmen’s Alliance Foundation (SAF), which had intervened in the case in support of the agency, appealed Molloy’s decision along with Safari Club International and the Rocky Mountain Elk Foundation. In August 2025, Michael Jean, litigation counsel for SAF, stated that, “this decision seems to hold that unless a species is not recovered across its entire historical range, then it has to stay listed — regardless of thriving populations.” 

“It’s difficult to see how the wolf, or other listed species, will ever be deemed recovered under that standard,” Jean said. 

On Oct. 13, a three-judge panel heard arguments in Center for Biological Diversity, et al. v. Sportsmen’s Alliance Foundation, et al., at the Russell E. Smith Federal Courthouse in Missoula. It was one of three wolf cases before the court.

“The Service conducted a robust analysis here,” said Emily Polachek, attorney for the appellants, in her opening statement. “It ultimately concluded that wolves in the western United States are not in danger of extinction, either presently or within the foreseeable future.” 

The conservation groups’ original challenge argued that FWS failed to consider significant portions of the gray wolf’s range, including in Colorado and the West Coast, and failed to properly evaluate the threat of human-caused mortality and inadequate state management. 

Range, Polachek said, “is the fundamental issue in this case.” The conservation groups argue that Northern Rocky Mountain wolves are absent from areas they historically inhabited and therefore require active recovery efforts. Polacheck countered that FWS only has to consider whether a species is at risk of extinction where it currently exists. 

“A species can’t be in danger of extinction in a place that it doesn’t occupy,” Polachek said. 

Circuit Judge Carlos Bea pushed back. “Doesn’t the fact that the area is now vacant of wolves give you some circumstantial evidence that the wolf population is declining?” he asked.

In determining a species’ status, Polachek said, the agency considered how recently the species vacated an area and whether the cause presented an active threat. Much of the wolf’s historic range loss resulted from a U.S. campaign to eradicate the animals in the 1960s. 

“That’s the difference, is that we are no longer actively trying to exterminate the wolves,” Polachek said. “That’s not happening and that’s why loss of historical range is not currently affecting wolves.”

Margaret Robinson, representing the conservation groups, reiterated that a species’ absence from an area does not allow FWS to conclude the area is not a significant portion of the species’ range. Because FWS did not analyze portions of the wolf’s historic range, including the Southern Rocky Mountains, its conclusion that the population did not warrant federal protection was invalid, she said.

“Again and again, over the past two decades, courts have reversed the Services unlawful listing decisions related to the wolf,” Robinson said. “And again and again, the Service has failed to address the common legal flaw, namely that recovery progress in a core area like the Northern Rockies does not allow the Service to abandon recovery in other biologically important areas.” 

Circuit Judge Richard Tallman questioned whether Robinson was conflating historical and current range. “Back to the conundrum I’ve been wrestling with all morning,” he said, “where do we draw the line? How far South, if you will, does the Service have to wait for wolves to be reported before it then considers those areas in its analysis?” 

“How far do we go before we decide the species is recovered?” Tallman added. 

Robinson said FWS was not expected to recover wolves across their entire historical range, but it did need to analyze geographic areas that are a significant portion of the species’ range, as outlined in the Endangered Species Act. The Southern Rocky Mountains, for example, are prime wolf habitat where the species is no longer present, and the Service excluded the region from its analysis because it deemed it unoccupied.

“What we’re asking the Service to do, is to identify these major geographical areas, like the West Coast, like the Southern Rocky Mountains, and determine if they are biologically important to the recovery of the species,” Robinson said, “because they have important habitat, because they provide value to the recovery of the species, and then evaluate whether the species is endangered or threatened there.” 

The case stems from decades of litigation over the gray wolf. 

In 1978, wolves were first listed as endangered in all 48 contiguous states, except Minnesota, where they were listed as threatened. In 2009, Northern Rocky Mountain wolves were separated into a distinct population segment that could be regulated differently. They lost federal protections in the ruling, and management fell to state agencies, including Montana Fish, Wildlife and Parks (FWP). 

In 2020, all wolves in the lower 48, excluding the Mexican wolf subspecies, were delisted. In 2021, a coalition of conservation groups filed two petitions asking FWS to relist the Northern Rocky Mountain population. A California court order reversed the 2020 delisting in 2022, leaving the Northern Rockies as the only population without federal protection. FWS issued the required analysis in 2024, finding the population did not warrant protection.

The plaintiffs challenged FWS’ determination in the case overseen by Molloy. They said FWS had not properly assessed the situation; the agency argued that even if wolf populations declined because of human-caused mortality and state management, it was not required to relist them. 

Molloy ruled in favor of the plaintiffs, finding that state management practices had harmed wolves by relying on population minimums and allowing aggressive hunting and trapping. In his opinion, Molloy warned of “a Catch-22” — “if the federal agency succeeds in restoring the gray wolf, leading to delisting, then the state agencies will predate the wolf, leading to relisting, engendering a fruitless cycle of delisting and relisting.” 

For its part, FWP has been at the center of controversy since it admitted earlier this year that it had overestimated Montana’s wolf population by nearly 35%. Following that announcement, the Fish and Wildlife Commission voted to adopt a wolf harvest quota of 300, which is 50 more than what FWP recommended but 150 less than the previous year. 

In a special commission meeting in September, the commission took a first step toward a predator management program. Conservation groups warn it would allow the commission to set harsher wolf hunting regulations in order to expand ungulate populations. 

The panel can either uphold Molloy’s order, requiring FWS to reassess the Northern Rocky Mountain population for federal protection, or reverse it, leaving the population without federal protection.

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