Wolf ruling impacts grizzly delisting
by Cat Urbigkit, Pinedale Online!
December 13, 2017
The U.S. Fish & Wildlife Service (Service) is seeking public comment on a federal appeals court ruling that may impact the agency’s final rule delisting grizzly bears in the Greater Yellowstone Ecosystem. The deadline for comments is January 8, 2018.
In 1975, the Service listed the grizzly bear under the Endangered Species Act as threatened in the lower 48 United States, and on June 30, 2017, the Service published a final rule designating the GYE population of grizzly bears as a Distinct Population Segment (DPS), finding that the DPS was recovered, and removing that DPS from the Federal List of Endangered and Threatened Wildlife. The final rule became effective on July 31, 2017, and remains in effect. Grizzly bears in the remaining area of the lower 48 States remain listed as threatened under the ESA as amended. The status of any grizzly bear population may be changed only through formal rule making.
On August 1, 2017, the Court of Appeals for the District of Columbia Circuit issued a ruling, Humane Society of the United States, et al. v. Zinke et al., that affirmed the prior judgement of the district court vacating the 2011 delisting rule for wolves in the Western Great Lakes (WGL). The 2011 rule designated the gray wolf population in Minnesota, Wisconsin, and Michigan, as well as portions of six surrounding States, as the WGL DPS, determined that the WGL DPS was recovered, and delisted the WGL as a DPS.
This court opinion may impact the GYE final rule, which also designated a portion of an already-listed entity as a DPS and then revised the listed entity by removing the DPS due to recovery. Therefore, we are reviewing the potential implications for the GYE final rule in light of the Humane Society ruling.
According to the notice seeking comment, FWS is "interested in public input on whether the Humane Society opinion affects the GYE grizzly bear final rule and what, if any, further evaluation the Service should consider regarding the remaining grizzly bear populations and lost historical range in light of the Service's decision regarding the GYE grizzly bear." The federal agency is clear that it is interested only in comments pertaining to the impact of the wolf ruling on GYE grizzly bear delisting.
The Wolf Case
A three-judge panel of the U.S. Court of Appeals for the District of Columbia sided with the Humane Society of the United States in overturning the delising of wolves in the Great Lakes region.
Notable portions of the decision (citations omitted) include:
• The district court held that the Service’s decision to delist the Western Great Lakes segment failed to adequately address the wolves’ loss of historical range. Because the Service’s interpretation of "range" as focusing on "current range" is reasonable, we uphold it. But because the Service categorically excluded the effects of loss of historical range from its analysis, we hold that the Service’s conclusion about the ongoing threat to the Western Great Lakes segment within its current rage was insufficiently reasoned, and therefore arbitrary and capricious.
• We hold that the Service’s analysis of the status of the Western Great Lakes segment within its current range wrongly omitted all consideration of lost historical range. Just because the Endangered Species Act does not compel the Service to interpret "range" to mean historical range, that does not mean that the Service can brush off a substantial loss of historical range as irrelevant to the species’ endangered or threatened status. So says the Service itself: The Service’s Range Policy is explicit that a species may be "endangered or threatened throughout all or a significant portion of its current range because [a] loss of historical range is so substantial that it undermines the viability of the species as it exists today."
• Despite immense losses in the gray wolves’ historical range—including the historical range of those wolves now occupying the Western Great Lakes area—the Service nowhere analyzed the impact of that loss on the survival of the gray wolves as a whole, the gray wolves remnant, or the Western Great Lakes segment. Such a failure to address "an important aspect of the problem" that is factually substantiated in the record is unreasoned, arbitrary, and capricious decision making.
• An important factor—the possible enduring consequences of significant loss of historical range— was left out of the analysis all together.
• The Service also argues that the Act does not require the restoration of a species to its entire historical range. Okay. But giving adequate consideration to the effects of large losses of historical range on a species’ survival going forward has nothing to do with where geographically a species must be restored. The only obligation at issue here is for the Service to contend with the implications of massive range loss for the species’ endangered or threatened status within its current environment.
Please see the link below for further details and documents regarding this issue.