The D.C. circuit ruled today against delisting the gray wolves in the Western Great Lakes - a decision that was upheld by the 2014 ruling (see here Scientists to feds: Gray wolves are not endangered
This ruling is a short-term setback, but it will very likely pave the way for a win for gray wolves, wildlife, and sportsmen in the long run. The Appellate Court's decision, for now, leaves ESA protections in place for the gray wolves in the Western Great Lakes. Crucially, the court has laid out a road map for the USFWS in order to achieve delisting and, most importantly, has dismantled many of the dangerous and unsupported holdings presented in the lower court decision.
The court has also ruled in favor of the USFWS on the most important legal issue: the definition of distinct population segments in regards to the Endangered Species Act and the USFWS's DPS policy. Conclusively, this shows that the FWS has the ability to list and
delist a species at the distinct population segment level.
The central dispute in this case is whether the Endangered Species Act permits the Service to carve out of an already-listed species a “distinct population segment” for the purpose of delisting that segment and withdrawing it from the Act’s aegis. We hold that the Act permits such a designation, but only when the Service first makes the proper findings.” (Op. at 15-16).
The lawsuit brought by the Humane Society of the United States; Born Free, USA; Help Our Wolves Live; and Friends of Animals and Their Environment have argued that the FWS could never delist a smaller portion of a species unless the entire species had fully recovered. This was rejected by the court.
"The court’s ruling that regional delisting is legally possible is a victory for sound scientific wildlife management and further upholds DPS policy of the Endangered Species Act as an important tool for conservation moving forward. While we clearly would have preferred that wolves be returned to state management today, this ruling provides a path forward for the Fish and Wildlife Service on how to successfully delist wolves once and for all. Folks in the animal-rights community would like believe that the Endangered Species Act is a one-way ratchet. In their world, you can only put species on to the Endangered Species List based upon a distinct population segment. However, we know that this is not how the ESA is written. This distorted view of the DPS policy is simply emblematic of their view of the ESA as a whole. They view this as a means to enshrine federal protections in perpetuity, as opposed to a tool to help those in need recover and be returned to state management. This ruling clearly ignored years of Fish and Wildlife Service policy, court rulings and plain common sense. The idea that wolves can never be deemed ‘recovered’ in the Great Lakes states until they have recovered across the entire U.S. is a complete fantasy." -Evan Heusinkveld, president and CEO of the Sportsmen’s Alliance
Furthermore, the appellate court dismantled many of the main arguments brought by the HSUS-led coalition:
The court upheld the FWS's interpretation that the ESA's definition of "range" refers to "current range" at the time of listing or delisting, not "historic range" as the HSUS have argued. The HSUS's dangerous interpretation would mean that populations may never be delisted if they could not rebound throughout their historic range. The court mentioned that we must consider large losses in historical range in evaluating the continuing viability of a species in its current range. On remand, the FWS must therefore decide a "baseline" date from which historical range loss is measured. One expected date would be 1973, the year Congress enacted the ESA.
HSUS argued that the FWS failed to explain why gray wolf mortality from humans and disease is not a continuing threat to the species' existence. The court found that the FWS had thoroughly examined these factors, and that gray wolf populations had continued to grow
despite any disease or human-caused mortality.
HSUS attempted to characterize Minnesota as an "unregulated killing zone." While the lower court's decision had agreed, the Circuit Court disagreed and found that Minnesota's depredation plan did not amount to an "unregulated killing zone," as it was indeed regulated and unlikely to threaten gray wolves' survival.
HSUS argued that the lack of state regulatory plans to monitor and protect the Western Great Lakes wolves outside of their core recovery areas in Minnesota, Wisconsin, and Michigan did not support FWS's decision to delist these gray wolves. The court found that the lack of separate state plans in six nearby states was not a concern because gray wolves are virtually non-existent in those states, and those animals that do occasionally appear are protected by other measures, or that they do not significantly contribute to the WGL population.
HSUS challenged the 2011 rule on genetics issues concerning whether or not there are one or two wolf species which would warrant additional protections. The court rejected this argument.
HSUS argued that the FWS had inappropriately responded to political pressure from Sen. Amy Klobuchar in adoption its gray wolf-delisting order. The court rejected that argument, stating that HSUS could point to no science "ignored, misused, or manipulated" or to any material change in FWS's position (in response to a letter from Sen. Klobuchar) - in particular, the court cites that FWS had acted favorably in response to several delisting petitions before ever receiving Sen. Klobuchar's letter.
Congressional Republicans and some Democrats are currently working on legislation to force the FWS to again delist the gray wolf and to make sure that the courts cannot undo this decision. The Senate Environment and Public Works Committee passed the "Hunting Heritage and Environmental Legacy Preservation for Wildlife Act" (HELP Wildlife Act) last week with a provision that would delist the gray wolf and prohibit judicial review. The House's appropriations bill for the Interior Department has a similar provision, as does a separate bill from Rep. Collin Peterson, neither of which has gotten a full House vote yet.
It is undeniable that the gray wolves have biologically recovered - what remains now are squabbles over political definitions. I will keep you all informed on any progress made hereafter.