The federal D.C. Circuit Court of Appeals has affirmed a lower court ruling striking down an attempt by the U.S. Fish and Wildlife Service to delist Great Lakes wolves under the Endangered Species Act. Delisting the Great Lakes wolves would remove federal protections and open the wolves to state hunting seasons. (See this prior Great Lakes Law post on Michigan’s state-sanctioned wolf hunt.) In Humane Society v. Zinke, the federal court rejected the U.S. Fish & Wildlife Service’s attempt to treat the Great Lakes wolf population as distinct from other endangered wolves and thus not needing of federal protection. For more details and insights on this important decision, Kelly Fasbinder has authored the following guest post. Kelly is an attorney with the Michigan Court of Appeals and graduate of Wayne Law. She recently published “International Women’s Human Rights: United States Stalling Progress From CEDAW Into CIL,” 61 Wayne L. Rev. 691 (2015-2016). Note that the views and opinions expressed herein are those of the author (Kelly) and do not reflect the opinions of the Michigan Court of Appeals.
The U.S. Fish and Wildlife Service (“FWS”) has the delegated authority to determine whether a species is “endangered” or “threatened” under the Endangered Species Act (“ESA”). Once the FWS determines that a species is endangered or threatened, the species must be added to a list of protected species and the FWS must “from time to time revise” the list “to reflect recent determinations, designations, and revisions,” and every five years must determine “whether any such species should” have their status changed or be removed from the list. The ESA defines the term “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife, which interbreeds when mature.“ 16 USC §1532(16). The ESA does not define what constitutes a distinct population segment (“DPS”), but policy guidance indicates that the two main criteria for designating a DPS are (1) discreteness (whether the population segment is “markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors.”); and (2) significance (for example whether the loss of the segment “would result in a significant gap in the range of a taxon”). Policy guidance emphasizes that the authority to recognize DPS should be used “sparingly.”
The grey wolf is an iconic endangered species, listed and protected under the ESA. But as some regional populations of the gray wolf have rebounded, the FWS has attempted to delist segments of the gray wolf population. In 2011, the FWS promulgated a rule, which designated the gray wolf population that inhabits Minnesota, Wisconsin, Michigan, portions of North Dakota, South Dakota, Iowa, Illinois, Indiana and Ohio, as the Western Great Lakes Distinct Population Segment, and removed this new segment of the gray wolf population from federal protection. As a result, the grey wolf would be subject to state managed hunting seasons.
In Humane Society of the United States v. Zinke, plaintiff challenged this rule as a violation of the ESA and the Administrative Procedure Act (“APA”), arguing the ESA does not authorize the FWS to carve out a DPS of an already listed species specifically to delist that segment to remove it from the ESA’s protections. The district court agreed with plaintiff, finding the ESA did not authorize the FWS to designate a segment only to delist it as the DPS process was a “one-way ratchet” that only allowed the FWS to provide more protection for a species.
The D.C. Circuit disagreed with the district court’s classification of the DPS process as a “one-way ratchet,” but agreed that the statute was ambiguous. The D.C. Circuit applied a Chevron analysis to uphold the FWS’s “reasonable” interpretation of the ESA as allowing for the use a DPS designation for purposes of delisting. However, the D.C. Circuit concluded that the way the FWS went about determining whether gray wolves in the Western Great Lakes region were a DPS was “fatally flawed.” Specifically, the D.C. Circuit found that in delisting of the Western Great Lakes Distinct Population Segment the FWS failed to make a determination about the already statutorily protected group of gray wolves outside the geographic boundaries of the Western Great Lakes Distinct Population Segment, thereby leaving a “remnant” population of wolves whose legal status was left in limbo. “Worse still,” the D.C. Circuit found that that without making any findings that the “remnant” population was no longer endangered under the statutory listing criteria, the FWS simply announced that, with the carve out, the remnant wolves were no longer a protectable species and proposed delisting them for that reason alone. The D.C. Circuit rejected that approach finding that the FSW lacked authority “to delist an already-protected species by balkanization.”
The D.C. Circuit also addressed what is the appropriate “range” to be contemplated in determining whether the wolf remained threatened or endangered “throughout all or a significant portion of its range.” 16 USC §1532 (20). Again, under Chevron, the court upheld the FWS’s interpretation that “range” refers to the species’ current range. However, the D.C. Circuit held that “the [FWS’s] analysis of the status of the Western Great Lakes segment within its current range wrongly omitted all consideration of lost historical range” and that “[s]uch a failure to address ‘an important aspect of the problem’ that is factually substantiated in the record is unreasoned, arbitrary, and capricious decisionmaking.” Because of these “serious deficiencies” in the FWS’s delisting decision, the D.C. Circuit affirmed the district court’s ruling vacating the FWS’s 2011 rule.