September 16, 2010

The wolf saga continues

By The wolf saga continues

Author:  Damien M. Schiff

This week, the United States Fish and Wildlife Service announced positive "90-day" findings on four petitions to delist the Western Great Lakes distinct population segment (DPS) of the gray wolf from the Endangered Species Act (ESA) (the DPS covers territory in Minnesota, Michigan, and Wisconsin).  The finding is just the latest in a long, litigation-soaked story.

The gray wolf was listed under the ESA back in the 1970s.  In 2003, following several successful reintroduction and experimental population programs, the Service "downlisted" several wolf populations from endangered to threatened on the grounds that each population had a "core" subpopulation whose strength assured that at least that portion of the larger population would survive.  In 2005, the Service's downlistings were successfully challenged in two district court actions.  The courts ruled that the Service cannot downlist a species solely based on an assessment of how one subpopulation is doing; rather, the ESA requires that the Service determine whether the species still merits greater protection in any "significant portion of its range" before downlisting or delisting may occur.

The Service went back to the drawing board, this time determining to propose a new DPS (the Western Great Lakes) within the existing eastern US wolf DPS, and then delist that new DPS entirely.  The Service's delisting was again successfully challenged, the district court ruling that the ESA was ambiguous on whether the Service has the power to carve out a DPS from an existing listed species and then delist it.  Because the Service's novel delisting had assumed that the ESA's text was clear on this point, the court ruled that the matter had to go back to the Service to determine whether the ESA's ambiguity on this point could nevertheless be reasonably interpreted in a way that would support the Service's delisting.

Hence, the Service on remand produced a new rationale explaining how the ESA's ambiguity could in fact be interpreted to support its DPS delisting theory.  The Service thereupon reissued its original delisting, with the added explanation.  That decision was again challenged on procedural grounds, specifically, that the Service's failure to allow the new delisting to be commented on violated the Administrative Procedure Act and the terms of the remand.  The Service conceded and withdrew the delisting.

Shortly after that action, several parties, including the states of Wisconsin and Minnesota, filed petitions to delist the Western Great Lakes DPS.  Under the ESA, the Service is required to make a finding, within 90 days of the receipt of a delisting petition, determining whether the petition contains substantial information indicating that the delisting may be warranted.  In this week's action, the Service made that positive finding.  Thus, under the ESA, the Service now has one year to determine whether in fact delisting of the DPS is warranted.

Based on this species's litigation history, it's safe to assume that, however the Service comes out, lawsuits will ensue.

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