In court, out of court. In court, out of court. The entire gray wolf issue all through the United States is nothing but a legal yo-yo that benefits only the lawyers. While many of us had our eyes on the legal wrangling and the current gray wolf hunts taking place in the Northern Rocky Mountains Distinct Population Segment region, the Western Great Lakes Distinct Population Segment has, once again, been placed back under federal protection.
Last September, 2008, federal judge Paul Friedman, in U.S. District Court in Washington, D.C. remanded a lawsuit brought against the Department of Interior back to the USFWS “for further proceedings”. This, according to Friedman’s ruling, was because the U.S. Fish and Wildlife Service failed to show that they had authority under the Endangered Species Act to create a Distinct Population Segment of wolves in order to delist a population of wolves. (Also known as a clerical technicality that really has no bearing on the case, in my opinion.)
According to the USFWS, they took care of their “further proceedings” and printed a Final Rule in April 2009, removing, once again, the gray wolf from federal protection. I know it may be difficult to fathom, but immediately a lawsuit was filed by The Humane Society of the United States, et. al., against the Department of Interior. Their claim being that USFWS violated the ESA by not providing a proper 60-day comment period before publishing the final rule.
A settlement was reached between the USFWS and HSUS and signed by Judge Paul Friedman that halts the delisting of wolves, places them back on the endangered and threatened species list and, should the USFWS decide to proceed again to delist the wolf, they must abide by the rules of administrative procedure, including a 60-day public comment period. (As well as be subject to paying plaintiff’s legal fees.)
I think you can clearly see the Yo-Yo effect here. I’m not a lawyer and am surely no expert on legal affairs but it would appear to me that the USFWS should have known that once Judge Paul Friedman remanded the case back in September 2008 and ruled that wolves be returned to federal protection, that any movement toward delisting again would require the same fundamental ESA administrative procedures. Give me a break. Are these guys wasting the courts time and taxpayer money?
But here’s the bigger question that I have. Judge Paul Friedman, in his September 2008 ruling, says he cannot see where the USFWS has the authority under the ESA to create a Distinct Population Segment of wolves in the Western Great Lakes for the purpose of delisting. He says the ESA is ambiguous and does not provide a definition. He also says the USFWS failed to present evidence that they could do this. This was all part of the “further proceedings” that Friedman remanded back the the Department. The question I have is what did the USFWS do about this defining of and creation of DPSs?
Because the Final Rule of April 2009 is no longer valid, we can only go by what the USFWS said about this.
The court ruled in favor of the plaintiffs because, in the judge’s opinion, the Endangered Species Act is ambiguous on the issue of whether a DPS can be identified and delisted simultaneously and, therefore, the Service should have provided an explanation for their interpretation of the ESA. To address the court’s concern, this Rule explains why simultaneously identifying and delisting DPSs of currently listed species is consistent with the ESA’s text, structure, policy objectives and legislative history, and relevant judicial interpretations.
The way I see it is that if the USFWS once again, attempts to delist the wolves in the WGL DPS, and they follow the procedures correctly, they will have to rely on the fact that they presented a good enough explanation in any Final Rule to satisfy Judge Friedman. My guess is that this is simply another court case looking for a place to happen.
This is all quite asinine really and a waste of resources, time and money. We have judges in different portions of the country who seemingly are not in agreement on rulings. It’s becoming a dog and pony show making a complete mockery of the Endangered Species Act and its intentions.
Now the Department of Interior will have to decide what they want to do. They must love this Endangered Species Act as it chews up their budget and the valuable time employees could be spent doing something productive. But hey, that would run contrary to big government now wouldn’t it.
One final thought that I really don’t want to explore. If this Yo-Yo effect continues, one would have to wonder exactly what the agenda is for the Department of Interior and the U.S. Fish and Wildlife Service.
I’ll leave it at that.
Tom Remington
