Gray wolves were prematurely delisted as an endangered species, in a manner that “blatantly contravenes” prior rulings and must be vacated, a federal lawsuit brought by environmental groups contends.
Last October, the Department of the Interior issued a rule removing the gray wolf from the Endangered Species Act. The rule went into effect Jan. 4, leaving wolf management to states and tribes.
The wolf remains endangered in Colorado and taking a wolf is illegal. The state has begun developing a management plan associated with reintroducing the species in accordance with Proposition 114, which passed into law last November. (See related story.)
In a lawsuit filed Jan. 14, WildEarth Guardians, Western Watersheds Project, Cascadia Wildlands, Environmental Protection Information Center, Klamath Forest Alliance, Klamath-Siskiyou Wildlands Center, The Lands Council and Wildlands Network challenged the U.S. Fish and Wildlife Service’s rule to remove protections for the gray wolves in the Lower 48. The USFWS rule excepted the Mexican wolf and red wolf subspecies, as well as a population in the northern Rocky Mountains that was already congressionally delisted.
The USFWS rule is improperly premised on reported recovery of wolves in the Great Lakes region, which the plaintiffs argue is not reason enough to delist the species across the board. By the agency’s own rule, gray wolves have not yet been restored to 85% of their historic range, the lawsuit says.
The rule “is arbitrary, capricious, an abuse of discretion and not in accordance with the ESA and APA (Administrative Procedure Act),” the filing alleges.
“As a direct result of human persecution, wolves became functionally extinct across the contiguous U.S. in the 1960s,” said Sarah McMillan, conservation director at WildEarth Guardians, in a provided statement announcing the lawsuit.
“Wolf reintroduction into Yellowstone in the mid-1990s was the start of an amazing effort to restore this keystone species to its historic range, an effort that is nowhere near completion. The Service may not claim victory and throw up its hands in the middle of recovery efforts, even if wolf management is challenging and has become a political hot potato. This directly contradicts the plain language and the intent of the ESA.”
Per the suit, the government illegally determined that the gray wolf did not meet the ESA’s definition of a species, which is erroneous and conflicts with USFWS’ own policies.
The government also violated the ESA and existing case law in its analysis of “gray wolf entities,” the plaintiffs allege.
“The Service’s creation of entirely fictional ‘gray wolf entities’ and simultaneous delisting of such entities, violates the ESA,” the complaint states.
The ESA also requires consideration of a species’ status across a significant portion of its range, which the Ninth Circuit Court has found to include “major geographical areas in which it is no longer viable but once was.”
Thus, the USFWS has to quantify a species historic range in order to establish a baseline, then determine whether the lost or unviable area, measured against that baseline, amounts to a significant portion.
“If a species is ‘expected to survive’ in an area that is much smaller than its historic range, the Service must explain its conclusion that the lost area is not ‘a significant portion of its range,’” the plaintiffs’ attorneys wrote in the complaint.
If that area is a significant portion, the USFWS has to conduct a threat assessment. Threats to a significant portion of range do not mean those threats must put the entire species at risk of extinction, the complaint also notes.
The USFWS’ 2014 attempt to interpret “significant portion of (species) range” was partly vacated by the federal courts as conflicting with the purposes of the ESA and therefore was arbitrary and capricious.
In the USFWS’ proposed 2019 rule, the agency acknowledged the 2014 policy had been partly vacated, and it cannot interpret the term “significant portion of its range” in a way that completely excludes analysis of the species’ historical range, the environmental groups argue.
Yet in its final rule, USFWS assumes there is sufficient resiliency, redundancy and representation to sustain the wolf population, as per the Great Lakes population “and that other wolves are merely part of the congressionally created (and congressionally delisted) Northern Rocky Mountains Distinct Population Segments and therefore are expendable,” the law suit states.
The rule ignores the possibility of restoring gray wolves to suitable habitat outside of the Great Lakes region and the value of recovering gray wolves elsewhere. The agency’s determination, based on its flawed definition of “significant portion of its range” is arbitrary and abuse of discretion, claims the suit.
The lawsuit also alleges an inadequate threats assessment; failure to use the best available science; post-delisting monitoring program that won’t be applied outside of Minnesota, Wisconsin and Michigan, and inadequate public notice and comment.
Previous attempts have been made to delist the gray wolf have been successfully challenged. For now, the management of wolves falls to each state. Some, such as Montana and Idaho, allow wolves to be hunted. Colorado does not and people who kill wolves can be fined, jailed or lose their hunting privileges.
Wolves should remain under federal protection, but turning management over to states has a potential bright side for Colorado, said Rob Edward, an adviser for the Rocky Mountain Wolf Project.
“We definitely support continuing efforts to keep wolves listed nationally, because don’t believe the spirit of the ESA has been honored in terms of the treatment of wolves nationally,” he said.
“The fact that they’re no longer listed also presents some opportunity for Colorado to move ahead with its reintroduction program in a way that avoids a lot of bureaucratic headache.”
Edward said it’s possible the wolf will be relisted federally, however, reintroducing the animals in the state could be achieved before then. The deadline to have “paws on the ground” in designated areas west of the Continental Divide is Dec. 31, 2023, under Proposition 114.
It’s not enough to leave wolf management to states, lawsuit backers said, because not all states are committed to properly protecting the wolf.
“Wolves are a keystone species whose presence on landscapes regulates animal populations and improves ecosystem health – something the Service has acknowledged for at least 44 years,” said Kelly Nokes, Western Environmental Law Center attorney.
“Allowing people to kill wolves in Idaho, Wyoming, and Montana has already stunted recovery in those states. Applying this same death sentence to wolves throughout the contiguous U.S. would nationalize these negative effects, with potentially catastrophic ripple effects on ecosystems where wolves have yet to fully recover.”