On December 11, 2008, recorded in the Federal Register, the Department of Interior, more specifically the U.S. Fish and Wildlife Service, published the final rule that places the gray wolf in nearly all of the lower 48 states, under federal protection of the Endangered Species Act. What this final rule does, I doubt 99.999999% of Americans understand.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) are issuing this final rule to comply with three court orders which have the effect of reinstating the regulatory protections under the Endangered Species Act of 1973, as amended (ESA), for the gray wolf (Canis lupus) in the western Great Lakes and the northern Rocky Mountains. This rule corrects the gray wolf listing at 50 CFR 17.11 to reinstate the listing of wolves in all of Wisconsin and Michigan, the eastern half of North
Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, the northwestern portion of Ohio, the northern half of Montana, the northern panhandle of Idaho, the eastern third of Washington and Oregon, and in north-central Utah as endangered, and reinstate the listing of wolves in Minnesota as threatened. This rule also reinstates the former designated critical habitat in 50 CFR 17.95(a) for gray wolves in Minnesota and Michigan, special regulations in 50 CFR 17.40(d) for the gray wolf in Minnesota, and special rules in 50 CFR 17.84 designating the gray wolf in the remainder of Montana and Idaho and all of Wyoming as nonessential experimental populations. This action revises the CFR to comply with three court orders. In addition, this final rule takes additional
administrative action that removes archaic provisions from the gray wolf special regulation at 50 CFR 17.84(i) and makes corrections to the gray wolf special regulation at § 17.84(n) by removing language referring to a Western DPS.

How I understand this is that the Department of Interior (DOI) has cranked the clock back in time to 1978. My question now becomes, why stop there?

Quick history: In 1978 the United States declared the gray wolf “endangered” in all lower 48 states with the exception of Minnesota. Wolves there were classified as “threatened”, essentially creating the first Distinct Population Segment (DPS) of gray wolves. Map 1 below shows areas shaded in gray as wolf protection areas. As you can see, Minnesota is listed as “threatened”. Map 1 also shows two areas of “nonessential experimental populations”(NEP) for gray wolves.

On November 22, 1994 (period of wolf reintroduction) the feds created the Yellowstone NEP, shown in the dark shaded area of the map. Again on January 12, 1998 a NEP was created in parts of Arizona, New Mexico and Texas.

On July 13, 2000, the USFWS proposed changes to the listing of the gray wolf that would have created 4 Distinct Population Segments. On April 1, 2003 what the USFWS ended up with was 3 DPS as can be seen in Map 3.

February 8, 2007, the USFWS published the final rule creating the Western Great Lakes DPS, in order to remove that segment of the wolf population from federal protection.

On February 27, 2008, the USFWS published the final rule designating the Northern Rocky Mountains DPS, in order to remove federal protection of the gray wolf in that area.

If you’re following along, you will now notice that within the lower 48 states there are no fewer than 5 DPS for gray wolves.

Lawsuits followed all of these actions. On September 29, 2008, Judge Paul Friedman, in a District of Columbia federal court, ordered the gray wolf in the Western Great Lakes (WGL) DPS returned to federal protection. More on this in a moment.

On July 18, 2008, Judge Donald Molloy, in a federal court in Montana, ruled the basis for delisting the wolf incomplete (he demands “genetic connectivity”) and also declared Wyoming’s Wolf Management Plan was inadequate to ensure the sustainability of the gray wolf in that state.

The third lawsuit dates back to 2005 when courts in Oregon and Vermont ruled that the Final Rule of April 1, 2003 (that created the three DPS shown on the maps above) violated the Endangered Species Act. Subsequently the ruling invalidated the three DPS created in that final rule. What isn’t clear is whether these two rulings apply to the two NEPs.

If we take a closer look at Judge Paul Friedman’s ruling, we see that he also believes that the feds’ creation of the Western Great Lakes DPS was an illegal act. Here is what I wrote back in September.

Judge Friedman’s ruling states that the reason he remanded the case was because the USFWS failed to provide a reason, supported by the ESA, to justify removing the gray wolves in the Great Lakes region only. In remanding the case the judge is sending the issue back to the USFWS for an explanation. Judge Friedman said the ESA’s definition of a “Distinct Population Segment” is “silent or ambiguous with respect to the specific issue.

What the Department of Interior has been forced to do is comply with the rulings of the three lawsuits. As a result the USFWS describes what is left for protection of the wolf.

As of the filing of the respective court orders, any and all wolves in the northern Rocky Mountains and western Great Lakes, except in Minnesota, are listed as an endangered species under
the ESA. Any and all wolves in Minnesota are listed as a threatened species under the ESA. The reinstated regulations found at 50 CFR 17.95 designate critical habitat for gray wolves in Minnesota and Michigan, and the reinstated special regulations in 50 CFR 17.40(d) govern the regulation of gray
wolves in Minnesota. The provisions of these regulations are the same as those in the prior regulations that were removed per our February 8, 2007, final delisting rule (72 FR 6052).
The reinstated special rules found at 50 CFR 17.84(i) and (n) designate part of the wolves in the northern Rocky Mountains as nonessential experimental populations. The provisions of the special rules are the same as those in the prior special rules that were removed per our February 27, 2008, final
delisting rule (73 FR 10514).
This means that wolves in Wisconsin, Michigan, North Dakota, South Dakota, Iowa, Illinois, Indiana, Ohio, Washington, Oregon, Utah, the Idaho panhandle, and northern Montana are hereby listed as endangered (50 CFR 17.11(h)). Wolves in Minnesota are listed as threatened (50 CFR 17.11(h)). Wolves in southern Montana, Idaho south of Interstate 90, and all of Wyoming are hereby listed as
nonessential experimental populations under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). The maps in the rule portion of this document illustrate the boundaries of the nonessential experimental population areas.

*Note* The Final Rule contains maps that show NEPs as described above.

What is becoming distinctly clear in all of these cases combined is that the DOI and USFWS have no legal authority to create a Distinct Population Segment for any species.

In the Vermont court case, part of the two lawsuits that essentially rendered the three DPS of wolves in the lower 48 states illegal and a violation of the Act, Judge J. Garvan Murtha’s ruling stated the following:

The definition of “species” includes “any distinct population segment of any species.” 16 U.S.C. § 1532(16). The ESA does not define “distinct population segment” (“DPS”), nor is it a term used in scientific literature.

Judge Murtha recognizes that the “DPS Policy” “allows” for the USFWS to protect species based on the Policy Regarding the Recognition of Distinct Vertebrate Population. This policy takes into consideration the “discreetness”, “significance” and “conservation status” of species. But Murtha obviously doesn’t think creating a DPS for management purposes and in this case, delisting purposes, is legal.

Judge Paul Friedman, who ruled that the WGL DPS was illegal, also stated that there is no definition of a Distinct Population Segment.

In 1978, the gray wolf (Canis lupus) was listed as threatened in Minnesota and endangered throughout the rest of the conterminous United States. On February 8, 2007, the United States Fish and Wildlife Service (FWS), an agency within the Department of the Interior, promulgated a final rule revising the wolf’s listing status. See 72 Fed. Reg. 6052 (Feb. 8, 2007) (the “Final Rule”). The Final Rule did not affect the listing status of the gray wolf everywhere. Rather, it designated a cluster of gray wolves in the western Great Lakes region as a “distinct population segment” or DPS. It then removed the wolves within the western Great Lakes DPS from the endangered species list. The Final Rule did not change the listing status of gray wolves outside the boundaries of the western Great Lakes DPS.

Judge Friedman tells us that the Endangered Species Act of 1973 as amended, is ambiguous when it comes to defining a Distinct Population Segment.

(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.

Friedman claims that the USFWS has the authority to declare any area a Distinct Population Segment based on the above as described in the ESA. But most telling is that he says the USFWS cannot create another DPS within the broader DPS. Which of course makes no sense at all as would pertain to proper and quality wildlife management. (Note that most states through “best available science” practices, have learned that in order to properly manage wildlife, they must create wildlife management districts.)

As a result of the three court cases discussed above, I have to ask why the Department of Interior stopped their clock rewinding at 1978? Why not go back to pre-ESA. As we have seen by court rulings of Defenders of Wildlife v. Norton, National Wildlife Federation v. Norton, Humane Society of the United States v. Kempthorne and the twelve parties that sued Kempthorne to put the wolf back under federal protection in the NRM DPS, tells us that creating DPSs is an illegal act. Any reasonable person would now question whether the federal government had the authority to create the first Distinct Population Segment of gray wolves in 1978 when it classified wolves in all the lower 48 states.

The confusing mess this has created now extends beyond just the gray wolf. It involves every species in existence in the United States. This is a clear example of the courts having inadequate knowledge of the issues making rulings that have now put the very species we may be wanting to protect in danger as well as stripping management powers from the USFWS.

I wrote recently of the efforts taking place as we speak to list the Atlantic salmon in Maine as endangered or threatened under the ESA. From this information we now ask, can the USFWS and NMFS (National Marine Fisheries Service/NOAA) create a Distinct Population Segment of Atlantic salmon? The feds are attempting to expand the listing and define critical habitat. This, according to the court’s interpretation, is creating a new DPS within a DPS.

Surely the Department of the Interior, in issuing this final ruling to return the gray wolf protection to 1978 levels, is telling us their hands are tied. They should have taken it one step further and rescinded the original declaration of a wolf DPS within the U.S. from the beginning. (Perhaps they knew that would actually get someone’s attention.)

This also raises some very serious issues with regard to the “Nonessential Experimental Population” of gray wolves in the Yellowstone National Park area and Arizona, New Mexico and Texas. Was it a legal act to create these NEPs? The broader question becomes whether the federal government had legal authority to reintroduce wolves into these regions? Surely if they can’t create segmented DPS of a species for management purposes, they have no legal right to dump species into these illegally crafted NEPs.

Obviously the power and authority of the Department of Interior, which includes the U.S. Fish and Wildlife Service, to manage wildlife has evaporated. Any so-called environmental or preservationist organization, with money behind it, can control the courts and get what they want. The Endangered Species Act is only as good as the lawsuits permit it to be. Perhaps it is time for the states to reclaim their sovereignty.

It appears the DOI has lobbed the ball back into the courts, figuratively and literally.

Tom Remington