I am absolutely convinced that not only has science been discarded in making rulings concerning Endangered Species Act cases but there also lacks any real cognition within the court’s rulings in such cases. In other words, little being said and done makes sense, logically or legally, but what they heck, that never stopped a good lawsuit before.

A friend and colleague from the Western Institute for the Study of the Environment (WISE) linked to a story of mine I did recently on the latest ruling by Judge Paul L. Friedman that placed the gray wolf of the western Great Lakes region back under protection of the Endangered Species Act. (To better understand the entire scope of this article, I suggest you go read, “The Endangered Species Act is Now Endangering Our Species“)

Mike at WISE saw something in Friedman’s ruling that I didn’t pick up in my haste to post the craziness of his ruling. He explains it this way.

Note that if the DPS Policy cannot be used to simultaneously designate and delist, it also cannot be used to simultaneously designate and list. That juris-logical knife cuts both ways.

In short, Friedman ruled that the U.S. Fish and Wildlife Service did not have the authority to create a segment (Western Great Lakes) of wolves, called a Distinct Population Segment (DPS) and propose they be removed from federal protection because they were no longer endangered or threatened. What Mike discovered and was also pointed out by another colleague was that Friedman’s ruling also means the USFWS has no authority to create a DPS in the first place in order to put a species on a list. So what does this mean?

As near as I can figure out nobody knows but only that these judges know nothing about what they are ruling on, are confusing an already complex issue that should be left up to scientists and they are destroying the legal process, leaving a trail behind that Sherlock Holmes would have trouble following.

I should probably take this opportunity to point out that these judges also have personal agendas.

Here’s some of the confusing mess all within Judge Friedman’s ruling.

2. Distinct Population Segments

The ESA authorizes FWS to list, delist and reclassify “species.” When the ESA was enacted in 1973, the term “species” was defined to include species, subspecies or “any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature.” Pub. L. 93-205, 87 Stat. 884, 886 (1973). Congress revised this definition in 1978 so that the definition of “species” now includes species, subspecies and any “distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16) (emphasis added).

It is common ground for the parties that because the ESA authorizes FWS to list endangered or threatened “species,” and because the term “species” is defined to include “distinct population segments,” FWS may list a distinct population segment of a vertebrate species even “when the species as a whole is neither threatened nor endangered.” Pls.’ Mot. at 5; see also Defenders of Wildlife v. U.S. Dep’t of the Interior, 354 F. Supp. 2d 1156, 1169 (D. Or. 2005). In this way, the “DPS tool” (as the parties frequently refer to it) permits FWS to “protect and conserve species and the ecosystems upon which they depend before large-scale decline occurs that would necessitate listing a species or subspecies throughout its entire range.” Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4725 (Feb. 7, 1996) (the “DPS Policy”).6 The central issue in this case is whether FWS may use the DPS tool in a different way as well: to simultaneously designate and “delist” a distinct population of animals that is thriving even though the broader species of which it is a part remains endangered (and listed as such) elsewhere. (emboldening is mine)

Friedman clearly points out in his ruling, that USFWS, by definition, can designate a DPS. With that authority, according to this ruling, USFWS can designate a DPS even “when the species as a whole is neither threatened nor endangered”. I find it confusing because the ESA states that in order to list a species, or again by definition a DPS, that species must be “in danger of extinction throughout all or a significant portion of its range.” We are then left to assume that the USFWS can create all the DPSs they wish, providing they have nothing to do with endangered species and whatever the definition of a DPS is.

Friedman has muddied the authority of USFWS, perhaps intentionally. He has succeeded in creating the ambiguity he claims prohibits him from making a final ruling. I don’t see how it can be both ways. You can’t have the authority to selectively create a DPS willy nilly, which Friedman here is suggesting the USFWS has done and then turn around later and issue a ruling based on the exact opposite of what he states. In his own words he acknowledges that the USFWS does have the authority to create Distinct Population Segments even “when the species as a whole is neither threatened nor endangered.” Then he turns around and tells them they don’t.

I understand somewhat what Friedman is saying in this case, believe it or not. If, as he claims, the entire lower 48 was declared a DPS (by his own definition) in 1978, then he is questioning whether USFWS has the authority to create DPSs within a DPS of the same species, in this case gray wolves. Was the lower 48 states designated a Distinct Population Segment?

As a dumb layman, I would have to say that using the very same explanation and definitions laid out by Friedman, the USFWS has the authority to designate a DPS within a DPS, within a DPS………… however, his ruling runs contrary to his own explanation. His ruling says USFWS CANNOT do this. If that is the case then the USFWS cannot designate a DPS to begin with. What alternatives does that leave us? Who even understands?

Friedman remanded the case back to the USFWS and basically told them, if I understand the ruling, that the definition of DPS is ambiguous. If it wasn’t before it surely is now. Whether any of us agree or not if the definition of Distinct Population Segment is ambiguous, he remanded the case back to the USFWS to define Distinct Population Segment.

Why then did he rule? Remanding means he is unable to make a ruling. His ruling states that the USFWS doesn’t have the authority to name the Great Lakes wolf population a DPS after the fact, meaning to separate it out from the entire lower 48 states. If he, by his own declaration, states he can’t make a judgment because DPS is ambiguous, then why did he make a judgment? And, why did he place the wolf back on the Endangered Species List?

It seems that the issue Friedman is trying to address is whether the USFWS had the authority to create a DPS after the initial announcement in 1978 to put the gray wolf under ESA protection. Where in this case has science been discussed pertaining to whether the wolf has recovered? Where is the science in this case that shows that the gray wolf in the Great Lakes region is once again threatened?

I might remind you that in Friedman’s own ruling he stated that the USFWS has the authority, after meeting certain criteria within the ESA, to list a species for protection. He also states that the USFWS has the authority to remove that species from protection using the same criteria.

So, it becomes clear that Friedman was only interested in getting wolf placed back on the ESA list. He remanded the case for clarification but took it upon himself to make a ruling anyway taking the USFWS authority away from them that he declared they had. Then for no apparent reason, other than what he said in his ruling, he decided to place the wolf back under protection because he thought it was easier.

I remain steadfast to my statements in my previous article that our wildlife, once thought to have some protections after the creation of the Endangered Species Act of 1973 are in eminent danger having been placed in the hands of judges who cannot think logically and rationally and have no knowledge or understanding of wildlife issues.

Tom Remington

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