By Jim Servi
Outdoors News contributing writer
Washington D.C. – An Aug. 1 ruling on the federal protection status of Western Great Lakes wolves by the U.S. Circuit Court of Appeals for the Washington D.C. Circuit was touted by sportsmen’s groups as a short-term setback for wolf management, but one that would likely set the stage for ultimately returning Great Lakes gray wolves to state management.
However, unless recently introduced Congressional bills are approved, that delisting process “may take two to four years,” according to George Meyer, Wisconsin Wildlife Federation executive director.
The rationale is the U.S. Fish and Wildlife Service (USFWS) essentially has to start the delisting process over with Great Lakes wolves as a “distinct population segment.”
The Aug. 1 ruling states: “The central dispute in this case is whether the Endangered Species Act (ESA) permits the (USFWS) to carve out of an already-listed species – a distinct population segment – for the purpose of delisting that segment and withdrawing it from the Act’s aegis. We hold that the Act permits such a designation, but only when the (USFWS) first makes the proper findings.”
With that language, the USFWS can delist wolves in distinct locations, such as the Western Great Lakes Region or Northern Rocky Mountain area of Idaho, Montana, and Wyoming while maintaining Endangered Species Act (ESA) protection in all other locations.
“Basically, the lower court decision from 2014, there were about 10 things the judge ruled on. One of them was the most damaging to relisting wolves in the Great Lakes and that was a provision that they could not be delisted until their former range was re-populated again,” Meyer said, referencing the Dec. 19, 2014,
decision by U.S. District Judge Beryl Howell that returned federal protection to wolves. “You don’t need to be a scientist to know that is impossible. Had that decision been affirmed, there was no way to ever delist (wolves) under the ESA.”
Protectionist groups like the Humane Society of the United States, Born Free USA, Help Our Wolves Live, and Friends of Animals and Their Environment argued that since wolf populations haven’t recovered in all former range, they must then remain under federal protected status. Based on this Aug. 1 ruling, these groups now have limited options for recourse.
The first reason is due to the prominence of the court issuing the ruling.
“The appellate court (U.S. Circuit Court of Appeal for the D.C. Circuit) issuing the ruling is really the second most powerful court in the country and is viewed strongly by the Supreme Court,” Meyer said, meaning the Supreme Court would likely not take up the case or would affirm the appellate court ruling.
Second, is that the groups advocating for additional protection technically won the case.
“They cannot go to the Supreme Court because they won the case. Now, they can ask the D.C. Circuit to add a word or two, but basically, they have to accept the opinion and that’s it,” said Jim Lister, legal counsel for the U.S. Sportsmen Alliance.
Assuming there is no appeal, the next step for the USFWS would be to re-start the delisting process with a specific focus on the distinct population segment of the Western Great Lakes gray wolves. USFWS guidance in “Delisting a Species under Section 4 of the Endangered Species Act” states: “To delist species, we are required to determine that threats have been eliminated or controlled, based on several factors including population sizes and trends and the stability of habitat quality and quantity.”
That begins with developing a recovery plan with benchmarks from partners and stakeholders in the recovery effort. The aforementioned recovery plan has been in place for several decades, with continuous monitoring efforts by the Minnesota, Wisconsin, and Michigan natural resource agencies, along with substantial assistance from the Forest Service, National Park Service, USDA-APHIS Wildlife Service, tribal natural resource agencies, and the USFWS.
A five-factored analysis is then completed, answering the following questions:
• Is there a present or threatened destruction, modification, or curtailment of species habitat or range?
• Is the species subject to overutilization for commercial, recreational, scientific, or educational purposes?
• Is disease or predation a factor?
• Are there inadequate existing regulatory mechanisms in place outside the ESA (taking into account the efforts by the states and other organizations to protect the species or habitat)?
• Are other natural or man-made factors affecting its continued existence?
These questions will have to be answered with the framework of the Great Lakes wolves as a distinct population rather than wolves as an entire species. With the recovery goals met and five-factor analysis approved, the USFWS would then publish their proposal to delist in the Federal Register. At that point, three species specialists would have to conduct a peer review while seeking input from the public, scientific community, federal, and state agencies. If that process indicates continued support, as it has in the past, the USFWS would publish a final rule to delist, again in the Federal Register. At that point, Great Lakes wolves would be removed from the Endangered Species List and the population, then moving to state management, would be monitored for five years to ensure their sustainability.
“If you very carefully read the opinion, they (USFWS) need to fix three things they did wrong,” said Lister, who has been following the appeal process for years.
“The simplest issue – the D.C. Circuit asked them to account for present impact of the loss of their historical range when recovery began,” said Lister. “Essentially, they (USFWS) would have to say something like, we acknowledge that wolves roamed over much of North America, their range shrunk through the 1800s and first half of the 1900s, until only a pocket of wolves were left in Minnesota. With protective measures, over the next 50 years, the range of wolves has steadily increased. That 50 years gives us confidence that with their current range they are no longer in danger of extinction now or in the future.”
“Second, they have to address the impact on the chance of other wolves outside the Great Lakes region surviving if they (Great Lakes wolves) are delisted,” Lister continued. “They (Great Lakes wolves) have very little to do with wolves in California, Oregon, Washington, and the northern Rockies because of the vast gaps and unsuitable habitat. We thought the 2011 delisting addressed that, but the D.C. Circuit Court wants them to clarify. This shouldn’t be difficult considering they already have extensive records and solid evidence. And there are no wolves anywhere else in the eastern United States, so by carving out the Great Lakes wolves, there will be no impact on recovery of wolf populations elsewhere. That’s what they need to prove and explain.
“The most abstract and toughest to explain is the distinct population segment,” Lister said. “The ESA recognizes full species, essentially every wolf on the entire globe. When you take a distinct population segment, there are wolves that don’t fit, such as California or Washington, so they need to add another paragraph explaining why other wolves are kept on the endangered species list. The lawyers need to explain how the ESA has the flexibility to do that.”
The USFWS has been through this process several times before with gray wolves, and it is unclear how much will need to be completed again and what information can be re-used, but it does appear they will have to start from the beginning.
“The ruling was sent back to the USFWS. They can’t just mend what they’ve done,” Meyer said. “They have to start again at an early stage of the process.”
That delisting process could take two to four years, but may prove to be unnecessary if either the House of Representation bill, HR424, or Senate bill, S1514, muster enough support to pass.
The House bill, Gray Wolf State Management Act of 2017, has 17 co-sponsors, including five Wisconsin representatives and bi-partisan support. It is direct and to the point declaring, “This bill requires the Department of the Interior to reissue two rules that removed protections under the Endangered Species Act of 1973 for the gray wolf populations located in Wyoming and the western Great Lakes (all of Wisconsin, Michigan, and Minnesota, as well as portions of North Dakota, South Dakota, Iowa, Illinois, Indiana, and Ohio). In addition, this bill prohibits judicial review of the reissued rules.”
However, “the key has always been the Senate,” Meyer said. “It (the Senate bill) has bipartisan support in Wisconsin and passed out of the Senate natural resources committee after several areas were added that brought in Democratic support. To avoid a filibuster, they need 60 votes and have 55 right now. They put the other things on to get five more votes, then it goes to the House, which would likely pass as is.”
Looking more closely at S1514, titled “Hunting Heritage and Environmental Legacy Preservation for Wildlife Act” or the “HELP for Wildlife Act,” the additional elements include construction and expansion of public target ranges on federal land, amendments to the Migratory Bird Treaty Act, the North American Wetlands Conservation Act, and the National Fish and Wildlife Foundation Establishment Act, re-authorization of the Neotropical Migratory Bird Conservation Act and Chesapeake Bay Program, modifying the definition of sport fishing equipment under the Toxic Substances Control Act, and expanding partnerships to improve fish habitat conservation. Although the original focus was delisting wolves, the intent of the Senate bill is to add enough balanced provisions to gain passage through bi-partisan support.
The “Reissuance of Final Rule Regarding Gray Wolves in the Western Great Lakes” is addressed in Section 7 of the Senate bill. It states: “Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on Dec. 28, 2011 (76 Fed. Reg. 81666), without regard to any other provision of statute or regulation that applies to issuance of such rule. Such reissuance shall not be subject to judicial review.”
There is also a similar section reinstating the removal of federal protections for the gray wolf in Wyoming. That final rule referenced on Dec. 28, 2011, officially removed gray wolves in the Western Great Lakes region from the Endangered Species List, and returned management of gray wolves to Wisconsin, Michigan, and Minnesota.
There have been several other similar Congressional bills that have ultimately floundered. However, Meyer is now more optimistic than he has ever been.
“They are likely to have all that done by December and there is a better than usual chance it will get done legislatively. I’d say 60/40 chance, maybe 65/35 percentage chance, that it will get enacted into law,” Meyer said.