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KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Federal Judge, reversing FWS rule, says Northern Rocky Mountain wolves are one population, so Wyoming cannot be managed differently from Idaho and Montana

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Defenders of Wildlife v. Salazar, CV 09-77-M-DWM, CV 09-82-M-DWM (consolidated)(D. Montana, Aug. 10, 2010)(Judge Donald Molloy)

RULING: After reviewing the Final Rule, the administrative record, the arguments submitted by the parties, the statutes and relevant case law, the Court finds:
-- The Endangered Species Act does not allow the U.S. Fish & Wildlife Service to list only part of a "species" as endangered, or to protect a listed distinct population segment only in part as the Final Rule here does; and
-- The legislative history of the Endangered Species Act does not support the Service's new interpretation of the phrase "significant portion of its range." To the contrary it supports the historical view that the Service has always held, the Endangered Species Act does not allow a distinct population segment to be subdivided.
Accordingly, the rule delisting the gray wolf must be set aside because, though it may be a pragmatic solution to a difficult biological issue, it is not a legal one.

EXCERPT: The record in this case implies that the Service tried to find a pragmatic solution to the legal problem raised by the inadequacy of Wyoming's regulatory mechanisms, and Wyoming's choices about meaningful participation in a collective delisting agreement like that engaged in by Montana and Idaho. Even if the Service's solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA. The northern Rocky Mountain DPS must be listed, or delisted, as a distinct population and protected accordingly. The issues of the adequacy of the regulatory mechanisms of Montana and Idaho, population size, connectivity and genetic exchange are subsumed by the determination that the Final Rule is contrary to the law and as such are not decided here.

wolfPack.jpg
The gray wolf is the largest wild member of the dog family. 74 Fed. Reg. 15,123,15,123 (April 2, 2009). Wolves generally live in packs of 2 to 12 animals and have strong social bonds. Id. Wolf packs consist of a breeding pair (the alpha male and alpha female), their offspring from previous years, and an occasional unrelated wolf. Id. Generally, only the alpha male and alpha female breed. Id. Litters are born in April and average around 5 pups. Id. Normally, 4 pups survive until winter. Id. Wolves can live up to 13 years, but in the northern Rocky Mountains 4 years is the average lifespan. Id. Packs typically occupy territories from 200 to 500 square miles, which they defend against other wolves and wolf packs. Id.  Wolf pack image above from Howling for Justice (Blogging for the Gray Wolf).

KEITHINKING: This month marked yet another turning point in the wolf litigation -- but then again, there have been ALOT of turning points.  As Lauren Himiak noted in her National & State Parks Blog "wolves were on the list in 1974, off the list in 2008, on the list in late 2008, off the list 2009, and back on the list now."  This time, the wolf is back on the list thanks to District Court Judge Donald Molloy and his ruling that the entire Rocky Mountain wolf population must be managed together.  In other words, Idaho and Montana could not have its own policies allowing wolf hunts while the listed wolves in Wyoming were regulated differently. See coverage in the Missoulian.  The ruling might seem inconsistent with the usual notion that Congress bestowed flexibility upon federal wildlife managers for "experimental populations" pursuant to Section 10(j) of the Endangered Species Act (ESA) -- but as the opinion explains, the problem is that Congress did not, in fact, provide that much flexibility.  Sure, critical habitat and consultation requirements might be different pursuant to ESA Section 10(j), but a "species" is still a species. (Or, more precisely, a Distinct Population Segment of a species cannot be further subdivided by state boundaries.)  Idaho Fish & Game declared the ruling a mess, see KLEW-TV, hunters called for legislation, see AmmoLand.com and Sen. Max Baucus vowed legislation.  Sadly, the decision scuttled plans for the settlement talks -- the one path that might actually produce a solution.  See Salt Lake Tribune.   In fact, what the Rocky Mountain wolves really need is a reasonable settlement, in turn codified through legislation, to end the litigation once and for all.  As Judge Molloy held, "Even if the (FWS) solution is pragmatic, or even practical, it is at heart a political solution that does not comply with the ESA."  That sentence sums up the problem.  The law is intolerant of politics (and all too often, politics are intolerant of the law.)  In a editorial published in the Casper Star-Tribune, the Greater Yellowstone Coalition proposed a long-term solution: (1) determine a baseline population figure used to set management policies (they propose using the exist population size), (2) develop policies to protect ranchers, and (3) allow fair-chase hunting for population control. The concept sounds workable, but #1 might prove to be the tricky one.  Reasonable minds, and scientists, will disagree about the "right" population figure.  Inevitably, even if a broad consensus is reached, a handful of persistent environmentalists might want more wolves than the baseline number, and an equally determined group of strong-willed ranchers and hunters will want fewer.  High low, high low, it's back to court we'll go...?

P.S.  In the colorful first page of the opinion, the Court wrote: "The fight about wolves, steeped in stentorian agitprop, ignores the two different mandates of the act: the risk assessments, whether listing or delisting, are designed to prevent extinction of a species, and secondly {whether} they are intended to promote recovery of that species."  FYI: stentorian agitprop = extremely loud propaganda.

LINKS:
Interested in more from the opinion? ...  
Defenders of Wildlife v. Salazar, CV 09-77-M-DWM, CV 09-82-M-DWM (consolidated)(D. Montana, Aug. 10, 2010)(Judge Donald Molloy)

HISTORY.  
     In 1974, the northern Rocky Mountain gray wolf was listed as endangered under the ESA. M.. at 15,124 (citing 39 Fed. Reg. 1171 (Jan. 4, 1974». In 1987, the Service developed a wolf recovery plan (the "1987 Recovery Plan"). That Plan established a recovery goal of at least 10 breeding pairs and 100 wolves for three consecutive years in each of three core recovery areas: northwestern Montana, central Idaho, and the greater Yellowstone area. Id. at 15,130. In 1994, the Service proposed to designate portions of Idaho, Montana, and Wyoming as two nonessential experimental population areas for the gray wolf under § 100) of the ESA. Id. at 15,124 (citing 59 Fed. Reg. 60,252,60,266 (Nov. 22, 1994). Through these designations, the Service initiated gray wolf reintroduction projects in central Idaho and in the greater Yellowstone area.
     On February 8,2007, the Service proposed to identify the northern Rocky Mountain gray wolf Distinct Population Segment (DPS) and to delist the species. The Service issued a final rule ("2008 Rule") doing so on February 27, 2008. The DPS encompassed all of Montana, Idaho, and Wyoming, as well as parts of eastern Washington, eastern Oregon, and northern Utah. 73 Fed. Reg. 10,514, 10,518 (Feb. 27, 2008)...  the Court identified two problems with the Service's decision. First, the Service likely acted arbitrarily in delisting the northern Rocky Mountain DPS without evidence of genetic exchange between subpopulations. Id. Second, the Service likely acted arbitrarily and capriciously in relying upon Wyoming's 2007 wolf management plan "despite the State's failure to commit to managing for 15 breeding pairs and the plan's malleable trophy game area." Id.
     On April 2, 2009, the Service issued a Final Rule to identify the northern Rocky Mountain gray wolf DPS, and revise the list of endangered and threatened wildlife. 14 Fed. Reg. 15,123. The Final Rule found the DPS continues to have numbers well above the minimum population recovery goal and new data showed genetic exchange not to be an issue between the three recovery areas ofthe DPS. Id. Additionally, the Rule observed that Montana and Idaho have laws, plans and regulations that ensure the wolf population will remain recovered into the foreseeable future. Id. However, the Rule also noted Wyoming's regulatory framework failed to meet the ESA's requirements. Id. at 15,125. Accordingly, the Final Rule declared "(1) the orthern Rocky MountainDPS is not threatened or endangered throughout 'all' of its range (i.e. not threatened or endangered throughout all of the DPS); and (2) the Wyoming portion of the range represents a significant portion ofrange where the species remains in danger of extinction because of inadequate regulatory mechanisms." 74 Fed. Reg. 15,123. The Final Rule "removes the Act's protections throughout the orthern Rocky MountainDPS except for Wyoming." Id.

LEGAL BACKGROUND.
     The ESA requires the Secretary to examine five factors when determining whether a species is threatened or endangered; the same factors apply to determine ifa previously listed species should be delisted. Id. § 1533(a)(1); 50 C.F.R. § 424.11(d). The factors include:
     (A) the present or threatened destruction, modification, or curtailment of its habitat or range;
     (B) overutilization for commercial, recreational, scientific, or educational purposes;
     (C) disease or predation;
     (D) the inadequacy of existing regulatory mechanisms; ndont>
     (E) other natural or manmade factors affecting its continued existence.
16 U.S.C. § 1533(aXl); 50 C.F.R. § 424. 11(c). Anyone of the factors is sufficient to support a listing determination if the factor causes the species to be in danger of extinction or likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range. Listing decisions must be made "solely on the basis of the best scientific and commercial data available," and without reference to possible economic or other impacts of such a determination...  A species reaches "recovery" when there is "improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in 16 U.S.C. § 1533(a)(I)" 50 C.F.R. § 402.02.

ISSUE.
     The fulcrum of Plaintiffs' principal argument is that the Service violated the plain terms of the ESA by listing something less than a DPS as endangered. The essence of the claim is that in the delisting Final Rule the agency relied on factors Congress did not authorize it to consider: an agency created sub-DPS taxonomy.

EXCERPT RE: MEANING OF THE TERM "SPECIES"  
     In this case the Service identified the northern Rocky Mountain gray wolf DPS as the species. 74 Fed. Reg. 15,125. No one takes issue with the DPS designation. Next, the Service determined the DPS is in danger ofextinction in Wyoming, and that Wyoming is a "significant portion ofits range." Id. at 15,183. Then, the Service placed the northern Rocky Mountain gray wolf DPS on the list of endangered or threatened species. It listed the common name of the "species" as "wolf, gray {Northern Rocky Mountain DPS}," the scientific name as Canis lupus, and the range where endangered or threatened as Wyoming. Id. at 15,187...  The ESA requires the agency to "determine whether any species is an endangered species or threatened species." Trout Unlimited, 559 F.3d at 957(emphasis in original) (internal quotation marks omitted). The words used in the ESA make clear that "species" excludes distinctions below that of a DPS, 16 U.S.C. § 1532(16); Trout Unlimiteg, 559 F.3d at 957, and this definition of"species" applies not only when defining a species, but to all sections of the ESA. See 16 U.S.C. § 1532 (defining the term species "for the purposes of this chapter")...
     In prior rules involving gray wolf DPSs, the Service noted that it "has the discretion to list, reclassify, or delist at the subspecies, species, or DPS level," 68 Fed. Reg. 15,825, but it recognized the ESA "does not allow wolves to be delisted on a State-by-State basis." 70 Fed. Reg. 1296. Such determinations were based upon the Service's DPS Policy and its reasoned opinion that the statute did not allow any other view. That earlier policy and interpretation guides the Service's "evaluation of DPSs for the purposes of listing, delisting, and reclassifying under the ESA" 61 Fed. Reg. 4725.
     In this case, the Service claims it listed the entire species but only applied protections to part of the DPS...  The reasoning of this solution is plainly at odds with the Service's historical reading of the law, a reading that matched what Congress said and intended in the statute.  The Service has not adequately explained this change of course.