Today in 2008: Gray wolves are back on the endangered species list

October 14, 2011

Today in Legal HistoryOn October 14, 2008, gray wolves in the northern U.S. Rocky Mountains region were returned to the endangered species list – the first of several more relistings to come..

This was the direct result of a court decision that vacated a ruling from the U.S. Fish and Wildlife Service (FWS) that delisted specific population areas of gray wolves.

However, this battle was only part of a larger war that has waged on essentially since the gray wolves were one of the first species added to the endangered species list created by 1973’s Endangered Species Act (ESA).

As such, some background is probably required for a fuller understanding.

Gray wolves were once common across the majority of the North American continent north of Mexico City, but their numbers declined as human populations increased.

This was due primarily to livestock depredation – that is, killing the predators that prey on livestock (generally, grey wolves don’t pose any safety risk to humans).

By the time the ESA was passed, wolf population numbers had dropped to a small fraction of its historic size.

Regardless, the addition of the grey wolf to the new endangered species list was quite controversial, especially among owners of livestock, who still viewed the wolf as an economic nuisance.

Adding the wolf to the list made it a federal crime to kill, harm, or otherwise (for lack of a better word) touch an endangered species.

Despite the constant debate on the issue since the 1970s, it wasn’t until 2006 and 2007 that opponents of the wolf’s protection made significant progress.

Gray WolfNormally, a species may only be delisted when the threats to its population are eliminated or controlled, and its population size and growth have sufficiently recovered.

No sensible rationale could be used to justify delisting the entire U.S. population of grey wolves.

The primary threats to its population (humans) had not disappeared, and its size and growth, though recovering, were not anything close to resembling its historic range.

Nevertheless, the FWS under the Bush administration employed some particularly shrewd legal tactics to remove the gray wolf from the endangered species list.

The FWS, through two administrative rules, subdivided the two major population groups of gray wolves into two “distinct population segments” (DPS) – the Western Great Lakes (WGL) and the Northern Rocky Mountains (NRM).

Each DPS is treated as a separate species for the purposes of delisting.

Because these two population groups were doing well (relative to the very sparse numbers across the rest of the country), the FWS was able to make a reasonable case for delisting, which it did in the same two rules that created the DPS in the first place.

This led to several environmental groups suing the agency, which was itself joined by several other defendants who collectively could be best described as “people with guns who want to shoot wolves.” *

Although the plaintiffs presented quite a few arguments, the court only (half-)bought one.

Although it still vacated the rule delisting the gray wolves, it did so because the court reasoned that it wasn’t clear that DPS’s were intended to be used to delist species (the plaintiffs claimed that the mechanism was intended only to add species to the list, not remove them).

That is anything but the end of the story, though.

The DWS again in 2009 promulgated a rule that distinguished as a separate group and delisted the NRM group of wolves.

A 2010 court case again blocked the rule, finding severe legal and procedural deficiencies with the agency’s rule-making procedures.

Tester - Simpson

Senator Jon Tester (D-MT, left) and Representative Mike Simpson (R-ID, right)

In April 2011, Senator Jon Tester (D-MT) and Representative Mike Simpson (R-ID) attached a rider to an appropriations bill (the widely-touted compromise that prevented a government shutdown) that compelled the DWS to publish the 2009 rule, and told the courts they couldn’t do anything about it.

Environmental groups, naturally, sued over the rider.

The court upheld the rider, though, because of the use of yet another legal technicality.

If his scathing remarks about the tactics used to ram the rider into the bill are any indication, though, the judge wasn’t happy about the decision.

When the smoke cleared, the NRM wolf population is no longer listed as endangered, and although other populations (in Wyoming and WGL) are still listed as endangered, it is essentially only a matter of time before they too are delisted.

What isn’t inevitable is the sustainable recovery of wolf populations after delisting; of course, the recovery of wolf populations may not have been what led to delisting the wolves in the first place.

* Joining the U.S. Fish and Wildlife Service as defendants on the suit were the U.S. Sportsmen’s Alliance Foundation, the Wisconsin Bear Hunters Association, Safari Club International, Safari Club International Foundation, and the National Rifle Association.