Is USFWS Authorized To Create Distinct Population Segments?
September 10, 2009
We learned on Tuesday that federal judge Donald Molloy refused to grant an emergency injunction to stop the wolf hunts in Idaho and Montana. What we also learned is Judge Molloy believes that the U.S. Fish and Wildlife Service cannot “carve out” the state of Wyoming from the rest of the Northern Rocky Mountains wolf population. Molloy suggests that by excluding Wyoming from the removal of the gray wolf from the Endangered Species Act list is a violation of the Act.
“The Service has distinguished a natural population of wolves based on a political line, not the best available science,” Molloy wrote. “That, by definition, seems arbitrary and capricious.”
To Judge Molloy and others, that may well appear “arbitrary and capricious” only because they are entrenched in the politics of the gray wolf issue and are perhaps refusing to take the entire ESA into account with its scientific intent to conserve and protect species…….all of them.
The ESA, like most bills constructed in Congress are long and complicated. When lawyers get into the act, intent of laws sometimes get muddled and lost. The intent of the ESA is to preserve and protect species from becoming extinct to what is considered practicable. I contend the Act gives the Secretary of Interior the flexibility to do what is in the best interest of protecting species. Again, I reiterate that in all discussions of protecting species, consideration has to be given to all species. It is “arbitrary and capricious” to endanger one or more species while utilizing the ESA as a heavy-handed weapon to achieve personal agendas – in this case, protection of the wolf at all costs.
There is argument to make that excluding Wyoming is “arbitrary and capricious” if one is focused on politics. I don’t recall anywhere in the 47 pages of the ESA where it factors in politics. It speaks mostly in reference to the best science and information available at the time decisions are made. Sometimes protecting species requires the isolation of political problems.
Excluding the politics, doesn’t it then become in the best interest of the people and the other wildlife species that state fish and wildlife officials have determined are in danger in certain areas because of the wolf, to remove the protection of the ESA in order to protect and preserve all the species? Wyoming is excluded because of politics and that issue needs to be solved separately.
The question still remains, at least according to Judge Molloy, is whether the USFWS has the authority to exclude Wyoming from the Northern Rocky Mountains population of gray wolves delisting? The Secretary within the Act has been given the authority to protect species and past history has shown us that it is a common practice for the USFWS to create certain “Distinct Population Segments” or DPS.
The courts seem to be hung up on the issue that the ESA says very little about DPS. From that it seems they deem the action illegal. The only reference within the Act about DPS is this:
(16) The term ‘‘species’’ includes 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.
The Act itself proposes that we set up programs to protect a species from going extinct. To make that determination, the Act also sets up guidelines that must be met before a species can be considered for an endangered or threatened listing.
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
In 1978 the United States decided to declare the gray wolf an endangered species in all the lower 48 states with the exception of Minnesota – gray wolves there were listed as “threatened”. Because of previous court rulings, one has to question whether the USFWS had the authority to list wolves in the lower 48. More on that in a bit.
In 1994, the USFWS created the Yellowstone Non Essential Experimental Population (NEP) of gray wolves. It’s intent was to bring wolves back to the park. A NEP listing, according to the ESA, is such that it is considered not essential to the protection of the species but with a goal that it could one day be recovered and delisted. In NEP areas critical habitat is not designated. Another criterion of the establishment of a NEP is that it must be isolated from an existing species of the same.
(j) EXPERIMENTAL POPULATIONS.—(1) For purposes of this subsection, the term ‘‘experimental population’’ means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.
Argument has been made that the creation and expansion of the Northern Rocky Mountain wolf population, all declared NEPs, was illegal as known populations of gray wolves existed in Northwestern Montana and portions of Idaho. (Another story)
In 1998 another NEP was designation in portions of Arizona, New Mexico, Texas and into Mexico. By April of 2000, the USFWS set up three Distinct Population Segments for administering the ESA and protecting wolves.
Those DPS did not last long. In 2005 in National Wildlife Federation, et. al v. Department of Interior, Judge J. Garvan Murtha ruled the creation of the three DPS in violation of the ESA.
In February, 2008, the USFWS created the Western Great Lakes DPS and set out to delist the wolf in this region.
In February 2008, the USFWS designated the Northern Rocky Mountains DPS and set out to delist the wolf in that region.
July 2008, Judge Donold Molloy rules against the removal of the gray wolf from endangered protection. Molloy’s ruling was for an emergency injunction. The full case brought against the USFWS was never heard as the USFWS withdrew its plan to delist the wolf. It was later revived.
In July 2008, Judge Paul Friedman, in a Federal Court in Washington, D.C. ruled that the USFWS did not have legal authority to create the Western Great Lakes DPS for the purpose of delisting the wolf. In his opinion he stated that this was in violation of the ESA, the same as Murtha’s ruling but using different reasons.
And most recently, the same Judge Molloy, ruled against the injunction and indicated that in the upcoming lawsuit of Defenders of Wildlife v. USFWS, the plaintiff’s claim that it is a violation of ESA to exclude Wyoming, may have merit.
We now have two judges who have ruled that creating DPSs are a violation of the ESA and a third considering such. What’s interesting is the Murtha ruling is based on the “DPS Policy” used by the National Marine Fisheries as reason to declare the creation of a DPS in violation of the ESA.
Friedman, on the other hand, remanded the case back to the USFWS (an unusual move) in order that they provide him with a clearer definition of a DPS.
What will Molloy use? Rulings are all over the place with neither of the two previous rulings citing the other. It really appears more like a case of ruling against a DPS because they wanted to than a finding of law violation.
Politics aside, science and evidence are telling us some of our other wildlife are suffering as a result of too many wolves in certain locations. State borders should have nothing to do with this. States manage their wildlife according to zones or districts. It has become the best available scientific method to do so and provides for better management broken down into smaller more manageable areas. This same principle should apply to the management of wolves throughout the entire NRM range.
To declare that carving Wyoming out of the picture as being “arbitrary and capricious” is showing one’s ignorance of the best wildlife management practices. The statement itself is political. As I said, the reason Wyoming is excluded is political. That problem needs to be resolved separately. In the meantime, wolves and all other wildlife species need to be managed. Delaying that process is irresponsible and is in itself a violation of the ESA.
This entire debate has become nauseating and a waste of time and money. Molloy has through his ruling, admitted that there are plenty of wolves and killing a few isn’t going to hurt anything. If he is to claim he must rule by the law, then be the first judge to actually rule using something substantial found in the ESA. Judges are supposed to interpret the meaning and intent of laws and rule accordingly. The ESA did not intend for wolves to run amok throughout Idaho, Wyoming and Montana, destroying other species putting them at risk and in need of protection from the same ESA. That’s ridiculous.
Tom Remington
http://mainehuntingtoday.com/bbb/2009/09/10/is-usfws-authorized-to-create-distinct-population-segments/
