April 20, 2009

Gray wolf delisting

By Damien M. Schiff Senior Attorney

Earlier this month, the Service issued a final rule both identifying a new distinct popoulation segment of the gray wolf (the Western Great Lakes population) and delisting it as recovered.  The final rule is the outcome of a remand ordered by the court in Humane Society of America v. Kempthorne (see here for earlier commentary on that case).  In this final rule, the Service sticks to its position that it has the authority simultaneously to identify a new DPS that is a carve out of an existing listed population, and then to delist that new carved-out population. The Humane Scoiety court had objected to the Service's attempt to do just that the first time round on the grounds that the text of the ESA is not clear on the point and that the Service had provided no explanation to defend its reasoning (other than the rejected contention that the statutory text is in fact clear).  Here is the Service's answer on remand:

While the Service acknowledges that the ESA is arguably ambiguous
on the “precise question'' posed by the court, it notes that the
court's question does not accurately describe what we did in the Final
Rule. What we actually did, under the precise language of the Act, was
to determine, pursuant to section 4(a)(1), that gray wolves in the
Western Great Lakes area constituted a DPS and that the DPS was neither
endangered nor threatened, and then revised the List of Endangered and
Threatened Wildlife, pursuant to section 4(c)(1), to reflect those
determinations. Our conclusion is that we had clear authority to make
the determinations and the revisions. We did not delist a previously
unlisted species; rather, we revised the existing listing of a species
(the gray wolf in the lower 48 States) to reflect a determination that
a sub-part of that species (the Western Great Lakes DPS) was healthy
enough that it no longer needed the ESA's protections. Our authority to
make these determinations and to revise the list accordingly is found
in the precise language of the ESA. Moreover, even if that authority
was not clear, our interpretation of this authority to make
determinations under section 4(a)(1) and to revise the endangered and
threatened species list to reflect those determinations under section
4(c)(1) is reasonable and fully consistent with the ESA's text
structure, legislative history, relevant judicial interpretations, and
policy objectives.

It would not be surprising if the plaintiffs in Humane Society sue again on the grounds that the Service's reading of the ESA is unreasonable under Chevron.

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