The Great Lakes Wolf Decision
Why Other States Should Be Alarmed
by Cat Urbigkit, Pinedale Online!
December 22, 2014
A federal judge in Washington, D.C. issued a decision Friday, Dec. 19, 2014 that reinstituted federal protections for wolves in Great Lake states of Minnesota, Michigan and Wisconsin. It’s the same federal court (but a different judge) that put Wyoming’s wolf population back under federal control in September 2014.
The Great Lakes case was led by the Humane Society of the United States, which was also involved in the case that overturned Wyoming’s management of wolves. This is the fourth time that the U.S. Fish and Wildlife Service has delisted wolves in the Great Lakes region, only to have that decision overturned.
But the 111-page Memorandum Opinion in the Great Lakes wolf case includes statements that should cause officials in states outside that region to take note and ponder whether wolves will ever be delisted.
The Great Lakes Details
The court began: "The D.C. Circuit has noted that, at times, a court "must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough." This case is one of those times."
Distinct Population Segments
The core issue in the Great Lakes case was the U.S. Fish and Wildlife Service’s use of an Endangered Species Act (ESA) provision for "distinct population segments (DPS)." Although gray wolves have been listed as a protected species throughout the Lower 48 states, FWS specifically changed the listing of wolves in the Great Lakes region (encompassing three-wolf inhabited states as well as parts of six other states) to declare it a DPS, simultaneous with removing federal protections for this DPS. The court found this improper.
The court cited the history of the DPS segment of the ESA, noting that it granted FWS authority to extend protection to discrete population groups within taxonomic species, even when that species was not otherwise endangered – but did not reference a possible use of DPS to remove protection from such population groups within an already listed taxonomic species such as wolves.
The court found: "The FWS’s interpretation is unreasonable on two levels. First, the structure, history, and purpose of the ESA do not permit the designation of a DPS for the purpose of delisting the vertebrates that are members of the DPS. Second, the ESA does not allow the designation of a DPS made up of vertebrates already protected under the ESA at a more general taxonomic level."
This point was made repeatedly by the court: "The FWS’s interpretation of the ESA as authorizing the simultaneous designation and delisting of DPSs—or the designation of a DPS solely for the purpose of delisting—directly conflicts with the structure of the ESA and, consequently, this interpretation is entitled to no deference …. The ESA is remarkably clear: the FWS must identify "species" that are "threatened" or "endangered," afford them the protections necessary to help them "recover," and then re-evaluate the listed entities once such "species" are recovered."
Which leads to the next issue – listing decisions should be examined at the species level.
Must Consider Entire Species
The court continued: "Even if the designation of the DPS were valid, the protections afforded the wolves encompassed by this DPS are controlled by the listing of the entire Canis lupus species and may not be reduced below that level through manipulation of the definition of "species" to treat the DPS’s members as if they were a different, unlisted species when they are not. This principle is inherent in the purpose and structure of the ESA."
"Instead of considering the status of the listed entity, the Canis lupus species, as a whole, the Final Rule purposely avoids a comprehensive evaluation of this endangered species throughout its historical range, focusing solely on the viability of a single population of gray wolves in only a part of that range."
The Court reflected back on the history of wolf protection in America: "By designating the species Canis lupus as endangered throughout its entire range of the conterminous United States, with the exception of Minnesota, in which the species was threatened, in 1978, the FWS sacrificed regulatory flexibility for protection. The agency did so because "the entire species Canis lupus is Endangered or Threatened to the south of Canada, and . . . [management] can be handled most conveniently by listing only the species name."
The court stated, "Simply put, once an entity is identified and listed, that entity is afforded protection under the ESA, and the agency’s actions must address that entire listed entity, regardless of whether the entity is a DPS, a subspecies, or a taxonomic species."
"For species such as the gray wolf, which have vast historic ranges, extending endangered species protection at the taxonomic species level, rather than at the subspecies or DPS level, may pose significant obstacles for subsequent delisting decisions, since any "review" must take into account the "status of the species" throughout "all or a significant portion of its range." When the FWS designated the entire species Canis lupus as "endangered" or "threatened" in the conterminous United States, it assumed that burden. To reclassify or delist Canis lupus, the FWS must review the status of Canis lupus, the listed entity, throughout its range, which the listing rule defined as the conterminous United States, and decide whether it is still threatened with extinction throughout "all or a significant portion of its range."
In summary, by listing the gray wolf at the general taxonomic level of species, the FWS obligated itself to address the gray wolf in the conterminous United States as a general species in any future decisions regarding reclassification or delisting of members of the species.
Range
An "endangered species" is, according to the ESA, "any species which is in danger of extinction throughout all or a significant portion of its range," the court noted, thus: "To reclassify or delist Canis lupus, the FWS must review the status of Canis lupus, the listed entity, throughout its range, which the listing rule defined as the conterminous United States, and decide whether it is still threatened with extinction throughout "all or a significant portion of its range."
This provision has specific impacts. According to the court, "The Final Rule defines the western Great Lakes DPS as encompassing all of Minnesota, Wisconsin, and Michigan, and portions of six other States. This territory represents a small portion of the area once occupied by the gray wolf, even within the western Great Lakes DPS, since the Final Rule notes that this population of "gray wolves historically occupied the entire Midwest."
Although the FWS had included a detailed description of suitable habitat in the Tri-State area of the Great Lakes, the court found fault in limiting this discussion to "suitable habitat," stating, "The ESA itself would seem to preclude such a limitation, since the first factor the Secretary must analyze in determining whether a species is threatened or endangered is ‘the present or threatened destruction, modification, or curtailment of its habitat or range.’ If anything, the ESA requires the FWS to draw the opposite conclusion from a finding that suitable habitat has disappeared: such ‘curtailment’ of habitat is a contributing factor to the threatened nature of a species." The court indicated that FWS must consider the historic range of the species when making listing and delisting decisions.
The court continued, "The challenged rule in this case contains no justification for why the lost historical range of the gray wolf population in the Midwest is not a significant portion of its range and need not be considered in evaluating the listing status of the gray wolf in the DPS. A single sentence declaring that territory previously occupied by the western Great Lakes wolves are "too small or too fragmented to be suitable for maintaining a viable wolf population," is insufficient and, indeed, immaterial because the ESA does not limit the range subject to consideration to only "suitable habitat." Rather, the ESA would appear to mandate that the loss of suitable habitat cuts in favor of extending protections, since it would represent a "present . . . curtailment of [the species’] habitat or range."
Even If Wolves Are Absent, They Must Be Protected
The court criticized FWS reasoning calling for delisting wolves in the Great Lakes region, noting, "The FWS’s reasoning appears to proceed as follows: despite acknowledgment that humans are the biggest threat to the continued viability of the wolf, followed closely by habitat destruction and disease, and that the management of habitat destruction and the prohibition on the killing of wolves has allowed the wolf to recover to some extent, somehow the ending of federal management and elimination of the taking prohibition is no longer necessary. This conclusion is disconnected from and belied by the record."
The court noted that FWS minimizes any concern over increased mortality rates due to human killing of wolves because of the purported sufficiency of state management plans to maintain wolf populations through disease monitoring and limits on wolf hunting. But the court found fault, citing "non-existent state regulatory schemes."
The FWS is required by the ESA to consider whether the "inadequacy of existing regulatory mechanisms" renders a species "threatened" or "endangered." Regarding this factor, FWS concluded that existing regulatory mechanisms present no threat to the gray wolf in the western Great Lakes. The court noted that although the FWS detailed the regulatory mechanisms present in the Tri-State Area, the agency did "not adequately address the threat posed to the gray wolf by the virtual absence of any regulations to protect the species in the other six states that make up the western Great Lakes DPS. This failure renders the agency’s finding on this factor contrary to the evidence in the record."
The court named the states and their deficiencies: "In North and South Dakota, the gray wolf is subject to a "closed season," where no hunting licenses are issued for the wolf, but otherwise the two states have no other regulations protecting the species. Indeed, North Dakota "lacks a State endangered species law or regulation," and in South Dakota, "wolves . . . are not State listed as threatened or endangered." Similarly to North Dakota, in Iowa wolves are the subject of a "closed season," but are not otherwise protected. No protections are afforded to wolves in Indiana or Ohio, where the gray wolf is listed as "extirpated." Of the six states outside the Tri-State Area in the western Great Lakes DPS, only Illinois has endangered species regulations in place that protects gray wolves. Still, the FWS avers that any wolves in those six states ‘will not make a meaningful contribution to the maintenance of the current viable, self-sustaining, and representative metapopulation of wolves in the {Great Lakes region},’ meaning the near total lack of protection for wolves in the Dakotas, Iowa, Indiana, and Ohio has no bearing on whether the western Great Lakes wolves are threatened by the inadequacy of state regulatory mechanisms. The fact that few, if any, wolves are currently present in the six states outside the Tri- State Area does not foreclose the possibility of an increased presence there, since the Final Rule makes clear that wolves show ‘a high degree of mobility,’ and, indeed, many wolves have been identified and killed western Great Lakes States other than Minnesota, Michigan, and Wisconsin."
Finding Fault With State Plan
Not only did the court criticize the "near total lack of regulatory mechanisms to protect the gray wolf in five of the nine states in the Great Lakes DPS," the court slammed FWS for its failure to explain "how a state plan to allow virtually unregulated killing of wolves in more than 50 percent of the state does not constitute a threat" to the species. The court was referring to Minnesota’s two wolf zones. Zone A, where most wolves reside, includes the northern 1/3rd of the state and strict controls on killing wolves would apply in that zone. Zone B, the remaining 2/3rds of the state, wolves would be subject to much more control – to the extent that they could be eliminated from this zone.
"Consequently, merely stating that a state plan allowing the virtually unregulated killing of nearly one-sixth of all wolves in the state, and the ability to kill any wolf that wanders into sixty-five percent of the State is "consistent with the Recovery Plan" is an unreasonable justification as to why the Minnesota Plan represents an adequate regulatory mechanism to prevent gray wolves from being extirpated again."
The 111-page Memorandum Opinion from the court was scathing about removal of federal protections for wolves, and it leaves both federal and state officials with plenty to contemplate as they look to the future and wonder whether wolves can ever be successfully delisted under the present language of the Endangered Species Act.
The court concluded: "While the FWS and the defendant-intervenors may have practical policy reasons for attempting to remove the gray wolf in the western Great Lakes from the List of Endangered and Threatened Wildlife, those policy reasons cannot overcome the strictures imposed by the ESA. The ESA offers the broadest possible protections for endangered species by design. This law reflects the commitment by the United States to act as a responsible steward of the Earth’s wildlife, even when such stewardship is inconvenient or difficult for the localities where an endangered or threatened species resides."
The Judge
The Great Lakes wolf case was decided by federal judge Beryl A. Howell. Howell was nominated to the position in 2010 by President Obama, and confirmed by the U.S. Senate. She is married to Michael Rosenfeld, who served as an executive producer at National Geographic for decades.
The Wyoming case
The Wyoming case was brought by the Center for Biological Diversity, Defenders of Wildlife, Fund for Animals, Humane Society of the United States, Natural Resources Defense Council, and the Sierra Club.
The rub of the court decision focuses on the fact that Wyoming’s commitment to manage for a wolf population above minimum management targets was spelled out in an Addendum to the Wyoming Wolf Management Plan – instead of regulation. The Court concluded that it "was arbitrary and capricious for the {U.S. Fish & Wildlife Service} to rely on the state’s nonbinding promises to maintain a particular number of wolves when the availability of that specific numerical buffer was such a critical aspect of the delisting decision."
The State of Wyoming promptly promulgated rules to make the provisions of the Addendum binding, and filed an appeal of the legal decision, and is also seeking wolf delisting in Wyoming via Congressional action (the same method used to achieve and retain wolf delisting in Idaho and Montana). With the legal decision in the Great Lakes case, perhaps other states will begin to look for Congressional action to delist wolves in their states as well.
Wolves in Wyoming are currently managed by the U.S. Fish & Wildlife Service under 1994 rules designating wolves in the state as a nonessential, experimental population. Wyoming wolves have twice been removed from federal protection: for four months in 2008, and again from September 2012 through September 2014.
Wolf Management In Minnesota
Wolves now revert to the federal protection status they had prior to being removed from the endangered species list in the Great Lakes region in January 2012. That means wolves now are federally classified as threatened in Minnesota and endangered elsewhere in the Great Lakes region. The Minnesota Department of Natural Resources, "Wolves in Minnesota can only be killed in defense of human life. Only agents of the government are authorized to take wolves if pets or livestock are threatened, attacked or killed."
Wolf Management In Wisconsin
Things are more dire in Wisconsin, where wolves are back to endangered status.
According to state officials:
• Permits which allow lethal removal of wolves issued to landowners experiencing wolf conflicts are no longer valid. The department will contact permit holders to alert them.
• The department is not authorized to use lethal control as part of its conflict management program. Non-lethal tools and depredation compensation remain available.
• Wisconsin’s law allowing landowners or occupants of the land to shoot wolves that are in the act of depredating domestic animals on private property is no longer in force
• Landowners may not kill wolves in the act of attacking domestic animals.
Wolf Management In Michigan
Under endangered species status, wolves may be killed only in the immediate defense of human life.
• Two state laws allowing livestock or dog owners to kill wolves in the act of depredation are suspended by the ruling.
• Additionally, lethal control permits previously issued by the Michigan Department of Natural Resources to livestock farmers to address ongoing conflicts with wolves are no longer valid; permit holders have been contacted regarding this change.
• The return to federal endangered species status also means DNR wildlife and law enforcement officials no longer have the authority to use lethal control methods to manage wolf conflict.
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