Endangered Species Law & Policy

The United States District Court for the District of Columbia recently held (pdf) that the U.S. Fish and Wildlife Service (Service) violated the Endangered Species Act (ESA) when it issued a final rule delisting gray wolves in nine states (Final Rule) because the Service’s interpretation of the ESA, particularly its identification of a Distinct Population Segment (DPS) to support delisting, was unreasonable.  Humane Society of the United States v. Jewell, Case No. 13-186 (D.D.C. Dec. 19, 2014).

The Final Rule, which took effect in January 2012, is the Service’s fourth attempt to delist the DPS at issue in the case.  The court began its decision with a discussion of the ESA’s general statutory framework and the history of efforts to protect the gray wolf, followed by an overview of previous attempts by the Service to delist the wolf population.  A brief summary of the history of the Service’s treatment of the gray wolf can be found here.  After multiple district courts had struck down the Service’s previous efforts to delist populations of the gray wolf, the Service tried again in 2011.  The Final Rule established a DPS of gray wolves known as the western great lakes DPS, which encompasses Minnesota, Wisconsin, Michigan, and parts of six other states. The Service delisted the DPS on the grounds that wolves from the DPS were not facing extinction and were not likely to face extinction in the foreseeable future.

As an initial matter, the court rejected the defendants’ procedural attack and held that the plaintiffs had standing to sue.  Defendants argued that plaintiffs lacked standing because they could not demonstrate that delisting gray wolves would reduce gray wolf populations and thus wolf sightings, and thus the plaintiffs failed to demonstrate the required harm.  The court disagreed, however, noting that data from Wisconsin and Michigan demonstrated that wolf populations have diminished in areas where hunting them had been made legal.

Turning to the substantive issues, the court held that the Service’s interpretation of the ESA was unreasonable, and in violation of the Administrative Procedures Act, for two reasons: (1) the structure, history, and purpose of the ESA do not permit the designation of a DPS for the purpose of delisting species that are member of the DPS, and (2) the ESA does not allow the designation of a DPS made up of species already protected under the ESA at a more general taxonomic level.

First, the court held that the Service’s creation of a DPS operates as a one-way ratchet to provide protections to a covered species.  In other words, the Service cannot create a DPS and simultaneously delist that same DPS.  The court reasoned that the Service’s own DPS policy, which states that the ESA is intended to authorize listing of some entities that are not accorded the taxonomic rank of species, necessarily implies that a prerequisite for designation of a DPS is that the potential DPS qualify for listing as endangered or threatened.  Therefore, under the Service’s own requirements, if a potential DPS does not qualify as endangered or threatened, the DPS may not be designated.  As such, the court found the Service cannot designate and simultaneously delist a DPS, as it had done in the Final Rule.

Second, the court found that, because the entire western Great Lakes DPS is part of the gray wolf species (Canis lupus), a species listed throughout the United States, the protections afforded to the DPS are controlled by the listing of the gray wolf and may not be reduced below that level.  The court stated that allowing the Service to use the DPS tool to delist smaller, healthy populations of a broader listed species would subvert the purposes of the ESA.  The court explained that the DPS tool was incorporated into the ESA to allow the Service the flexibility to designate smaller population groups of a species in need of ESA protections when protections are not necessary throughout a species’ entire range, not to allow the Service to remove protections from a DPS of a more broadly protected species.

Finally, the court held that, even if the Final Rule had been properly promulgated, it would still be invalid because the Service failed to adequately explain (1) why territory suitable for gray wolf population is not a significant part of the species’ range, (2) the impact of combined mortality factors such as disease and takings, (3) the adequacy of state regulatory schemes, and (4) how the presence of an unregulated killing zone in Minnesota does not constitute a threat to the species.  The court found that the Service’s lack of explanations rendered the Final Rule arbitrary and capricious.

Accordingly, the court vacated the Final Rule, thereby restoring ESA protections to the western Great Lakes DPS.