The Endangered Species Act Is Now Endangering Our Species
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As the courts continue to decide what the Endangered Species Act is for, we have reached a point where it appears now that our wildlife that needs protecting is in eminent danger. Yesterday, Federal Judge Paul L. Friedman, ordered that the gray wolf in the Western Great Lakes region be placed back under protection and management of the U.S. Fish and Wildlife Service. That decision and the subsequent ruling of the court I now see as jeopardizing the health and sustainability of our other wildlife and plant species all within specific ecosystems.

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”.

The judge did not have to put the wolf back on the endangered list but it appears that he did just because he could. More on that later.

What Judge Friedman is saying in his ruling is that the USFWS has no authority under the ESA to selectively delist only the population of gray wolves in the Great Lakes region. In his opening opinion he says this:

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.

In short, Judge Friedman seems to be saying that because in 1978 the federal government opted to list the wolf as either “threatened” or “endangered” everywhere south of the Canadian border, they cannot now chop up wolf population segments in order to remove them from the ESA protection status. He supports this by saying the ESA is ambiguous and finds no previous court rulings otherwise, therefore it doesn’t give the USFWS authority to delist only the Great Lakes population segment of wolves.

The Endangered Species Act of 1973 says in reference to 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.

According to Judge Friedman’s ruling, the USFWS argued that this was the intent of Congress when it developed the ESA. Friedman didn’t buy it.

On the other hand, “deference to an agency’s interpretation of a statute is not appropriate when the agency wrongly believes that [its] interpretation is compelled by Congress.” PDK Laboratories, Inc. v. DEA, 362 F.3d at 798. As discussed above, it seems clear that FWS erroneously concluded that its interpretation of the ESA was compelled by Congress.

Friedman also tries to explain why the USFWS interpretation is ambiguous.

Because the ESA is ambiguous with respect to the issue at hand, the Court is required to defer to any permissible agency construction under Chevron step two. See Defs.’ Mot. at 13; Defs.’ Opp. at 4. In this case, however, there is no permissible construction to which the Court can defer. The Final Rule and FWS’ papers rely exclusively on a “plain meaning” reading of the ESA which the Court already has rejected. And even assuming that the Court could look elsewhere for an interpretation to which it could defer, there is none in sight. The DPS Policy does not qualify as a construction to which this Court can defer because the DPS Policy does not directly address the interpretive issue before the Court. The purpose of the DPS Policy is to clarify the meaning of the term “distinct population segment” and to set forth criteria for deciding whether a sub-population should be designated as a DPS. It does not address the propriety of simultaneously designating and delisting a DPS within a broader listing, and the Court finds both parties’ arguments to the contrary strained and unpersuasive. Nor may the Court look to the ESA’s implementing regulations for a Chevron-worthy interpretation. Those regulations largely track the statutory provisions discussed in part III.B and, like those statutory provisions, do not directly address the interpretive issue before the Court.

So Judge Friedman remanded the case back to the USFWS for them to provide a definition of “distinct population segment” the court will accept, that then allows the feds to break out segments of wolves or any other species and remove from federal protection.

The second issue with the case was whether or not the wolf in the Western Great Lakes region should be placed back on the ESA. Friedman explains it this way:

The Court agrees with FWS and defendant-intervenors that it is within the Court’s discretion to remand without vacating the Final Rule, but in the context of this case it declines to do so………..Second, while it is true that vacatur will have a palpable regulatory effect – specifically, management responsibility for the western Great Lakes DPS will be reposed in the federal government rather than in the states – the Court concludes that “disruption” is not a substantial concern in this case. Little confusion or inefficiency will result from reinstating a regulatory regime that was in place from 1978 to 2007, particularly given the fact that state and federal wolf management authorities have been working in tandem for years.

Judge Friedman concludes his reasons for placing the wolf back under federal protection by saying he agreed with the plaintiffs that he thinks the ESA prefers to protect the animals. Is it fair then to add to that he, like most others, believe it is better to protect the animals than the rights of the people?

We can argue until we are blue in the face over whether this judge or Judge Donald Molloy, who ruled over the recent return of the gray wolf in Idaho, Montana and Wyoming to the ESA, but the problem clearly lies with a faulty Endangered Species Act. Without changes our wildlife is in danger. Why do those so eager to protect the wolf not see that further lack of management of wolves threatens sustainability of other species, species we have spent millions of dollars to protect?

If this ruling remains and USFWS refuses or cannot reverse this decision, much of the U.S is in serious trouble with wildlife management. People have very little faith that the USFWS is looking out for their interest, after all it is another government agency. Many believe they are too scared, too broke and too interested in the efforts of environmentalists to much care about the rights of others. The USFWS has shown us of late their unwillingness to fight to keep the wolf listed in Idaho, Wyoming and Montana by simply walking away and asking the judge to withdraw their request. Why should we think the USFWS is interested in reversing this latest ruling.

The seriousness of this ruling is widespread. We must think beyond wolves. It affects every living species within the borders of our country. If Friedman’s ruling stands, this means that because the federal government declared the gray wolf either threatened or endangered in every state south of Canada, the only way the wolf can ever be removed from ESA listing is when it can do so throughout all of the lower 48 states. We know that can never happen.

Now the danger comes because there is a lessening of the desire to list species that might need so out of fear of the consequences that might follow. This will have an affect on whether the feds desire to protect a species. In short, this is abuse of the ESA, a poor interpretation and the end result is going to be the loss of some wildlife to protect another. It’s ridiculous.

The USFWS needs now to rethink any actions pertaining to other species. It needs to clearly define any and all historic species habitat out of fear it will wrongfully place a region under the restrictive rules of the ESA.

The USFWS will now be given the task of managing the gray wolf in the entire lower 48 states, a task they are not able to do. They don’t have the resources to undertake such an event. What will that mean to our other wildlife populations and the property rights of all Americans?

Much of this is unknown but an investigation into what is happening in certain areas is certainly revealing enough that it should cause concern. The facts are that in certain areas where wolves are growing unchecked and unmanaged, elk and deer populations are disappearing at historic rates. Is this really what we want? Is this really what the ESA was created for?

Livestock depredation is on the rise in specific areas along with wolf and human encounters. These surely will continue to increase. Again I ask was this the intention of the ESA in 1973 when it was written?

Environmentalists have managed to make a sham out of the ESA through their lawsuits and as much as I hate to support judges, some of their rulings are in line with the text of the ESA. Animal activism, all in the name of saving one animal, is now putting others at risk. We can’t let this happen. Friedman’s ruling is detrimental to the health and sustainability of all of our wildlife nationwide.

As I see it, should this ruling force the USFWS to opt against a listing of a species because the interpretation of the ESA is so flawed, then the environmentalists will just be forced to change their lawsuit tactics and begin suing to force the USFWS to list even when they don’t want to. We already know that the enviros believe the ESA was written to “require” the feds to list and protect every species in existence in this country.

If we don’t act immediately to rewrite the Endangered Species Act, the years of hard work and billions of dollars expended will soon be flushed down the drain.

Tom Remington

Wolves In Great Lakes To Go Back Under Protection Of ESA
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A federal judge in Washington, D.C. ruled today that the USFWS is breaking the rules of the Endangered Species Act by attempting to delist the wolves in the Great Lakes area. As I understand the ruling, the court is saying that because wolves were listed as endangered everywhere south of the Canadian border, then removing them from protection cannot be done until evidence shows recovery everywhere south of the Canadian border exists. In short, never!

I am in the process now of analyzing the ruling but if this is the case, then this is a clear indication of a faulty ESA, one in drastic need of amending. A ruling like this, if upheld, would have sweeping consequences across the entire country.

I’ll have more on this ruling tomorrow.

Tom Remington

Prions (Chronic Wasting Disease) Tough Stuff To Kill
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Even though science has yet to discover exactly what causes chronic wasting disease or to fully understand how the disease is spread, they are learning that prions are difficult to destroy. Prions, which is a protein, is believed by some to cause chronic wasting disease as it effects the brain of animals such as deer. How this all occurs is not yet understood but a recent study in Wisconsin has shown that these prions will survive the standard sewage treatment we use in dealing with municipal sewage.

According to the Milwaukee Journal Sentinel, if these prions, through infected animals, gets into our municipal sewage treatment plants, they won’t be destroyed and can be spread across agricultural lands in the sludge which is routinely spread in our farm fields. This can quickly further the spread of disease.

Hunters taking deer in areas known to have chronic wasting deer, should make sure they dispose of any remains properly. It is believed that incinerating is the best way and not thrown in landfills of disposed of in the woods.

Tom Remington

Wisconsin Considering A Wolf Hunting Season
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Save a WolfThe Wisconsin Conservation Congress seems to be testing the waters a bit by seeking input from residents on the prospects of offering a wolf hunt, partly in efforts to slow down the growth of the animal and keep human encounters and livestock damages to a minimum. Nothing being proposed is binding.

Last year the U.S. Fish and Wildlife Service declared the wolf fully recovered in Wisconsin, Minnesota and Michigan and removed the wolf there from the list of endangered animals. None of the states currently offer wolf hunts and they still protect them through state mandates.

Grumblings are occurring in areas where wolves are creating problems and in some cases wolves are plentiful enough that people are being impacted to a point they don’t want to go outside out of fear. People want to see something more done to manage wolves and reduce numbers.

But the wolf lovers will have none of that and continue their selfish ways of wanting more rights and privileges for the wolf than the people. Even after the feds removed the wolf from the list, wolf advocate groups and animal rights groups filed suit to get the wolf put back on the endangered list.

A pending lawsuit filed last year by four animal advocacy groups demands that the Fish and Wildlife Service place wolves in Wisconsin, Michigan and Minnesota back on the endangered species list. Groups involved included the Humane Society of the United States, Help Our Wolves Live, the Animal Protection Institute, now known as Born Free USA, and Friends of Animals and Their Environment.

The highest concentrations of wolves are in the northern part of the state and thusly so are the most problems. One Eagle River resident and grouse hunter put it best when he said:

“There’s a lot of people who love the wolves,” he said, “but they don’t live up here.”

Tom Remington

Pittman-Robertson Act Provides Funds For Hunter Safety
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Home Made Tree StandOn Monday of this week I reported that eight states (Iowa, Indiana, Illinois, Michigan, Wisconsin, Minnesota, Missouri and Ohio) were going to request grant monies available through the Federal Aid in Wildlife Restoration Act, also known as Pittman-Robertson, in order to conduct studies on tree stand safety. The article I wrote generated some discussion and comments, one coming from reader MadJack.

Yes the P/R Act was to improve hunting & wildlife habitat, NOT to WASTE in an attempt to control hunters & how they hunt! I believe this would be a direct violation of the Pitman Robertson Act as well as very unlawful.

More Government waste!

While I tend to agree with MadJack, I wasn’t aware that revenues generated through PR were used via the U.S. Fish and Wildlife Service to fund programs for hunter safety and education. According to PR Act Title 16, Chapter 5B, section 669h, $8 million will be apportioned back to each state for certain hunter safety programs.

Of the revenues covered into the fund, $7,500,000 for each of fiscal years 2001 and 2002, and $8,000,000 for fiscal year 2003 and each fiscal year thereafter, shall be apportioned among the States in the manner specified in section 669c(c) 1 of this title by the Secretary of the Interior and used to make grants to the States to be used for–

(A) in the case of a State that has not used all of the funds apportioned to the State under section 669c(c) 1 of this title for the fiscal year in the manner described in section 669g(b) of this title–
(i) the enhancement of hunter education programs, hunter and sporting firearm safety programs, and hunter development programs;
(ii) the enhancement of interstate coordination and development of hunter education and shooting range programs;
(iii) the enhancement of bow hunter and archery education, safety, and development programs; and
(iv) the enhancement of construction or development of firearm shooting ranges and archery ranges, and the updating of safety features of firearm shooting ranges and archery ranges; and

(B) in the case of a State that has used all of the funds apportioned to the State under section 669c(c) 1 of this title for the fiscal year in the manner described in section 669g(b) of this title, any use authorized by this chapter (including hunter safety programs and the construction, operation, and maintenance of public target ranges).

An act that was originally designed for the protection of wildlife and habitat, it has been amended many times in order that these funds can be used for other programs not directly related to it original purpose. As I understand the Act, monies are apportioned back to each state for the specific purposes described concerning hunter safety and education programs. If that money has been used up, USFWS grants additional monies collected via PR for further hunter education and safety programs.

Tom Remington

9 Days – 344,000 Dear Taken By Wisconsin Hunters
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Wisconsin Deer HunterWisconsin’s 9-day gun deer season racked up a total of 343,644 deer. That translates into 218,584 antlerless deer and 125,060 bucks. These totals are far from the record total harvest set in 2000 when an ideal hunting season produced a harvest of around 442,000.

Wisconsin wildlife officials guesstimate that there were around 1.8 million whitetail deer in the state. That’s approximately 100,000 more than a year ago. They also say that they believe a lack of snow, some rainy days and fewer hunters account for the reduction in harvest totals. This year the state sold 641,432 deer hunting licenses for this hunt. That’s down about 3,500 from last year.

Never fear as there still remains deer hunting opportunities. On Monday a muzzleloader season began that runs through December 5. That will be followed by a statewide antlerless deer hunt that will run for four days. The archery hunt continues until January 6.

Congratulations to all the successful hunters and good luck to those still trying.

Tom Remington

Wisconsin Hunter Attacked By Black Bear
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Black BearI’m confused! The Duluth News Tribune reports that a Wisconsin man, whom they describe as a hunter, was attacked by a black bear this past Thursday. In the report it says the hunter, Jim Zamaitis, wasn’t carrying a gun.

He said the incident won’t deter him from hunting, although he may consider carrying a gun from now on during deer drives.

I know I have Wisconsin readers so would anyone like to explain why Zamaitis wouldn’t be carrying a gun during a drive. I’ll take the lazy way out here and just ask questions. Am I to assume that “driving” deer is legal in Wisconsin? Is it also law that you cannot carry a gun when participating in a deer drive or was this just a case of a volunteer driving deer for others? Is it legal to participate in a deer drive unlicensed provided you are not carrying a gun?

It seems that during this drive, Zamaitis spotted a black spot and thought perhaps it was a burned or charred stump. The stump reared up.

“I saw teeth and then it reared up on its hind legs, charged me and I rolled over into a ball, started screaming,” he said.

He put his hands over his head.

“Pretty soon I felt the bear on me and then chomp, chomp,” he said.

His cousin Rick heard the screams and came to the rescue to find the bear on top of the man. He was able to scare the bear away.

Tom Remington

Too Many Deer Not Good For Anyone
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Too Many Deer in WisconsinHere’s an article some of you may be interested in reading. It’s written by Tim Eisele of the Capital Times in Wisconsin. It’s an interview with Keith McCaffery, a retired research biologists for the Wisconsin Department of Natural Resources. McCaffery shares his ideas of why too many deer are not good for much and also touches on some negative aspects of quality deer management programs.

It is bad for deer because it has cheapened their value. It is not good for hunters because non-hunting constituencies tend to blame hunters for having badgered the DNR into allowing higher population goals and permitting herds to grow.

It is bad for DNR because it gives the appearance that the DNR is incapable of managing deer at goal levels.

Check it out!

Tom Remington

Applications For Bear Hunts In Wisconsin Skyrocket
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According to the Green Bay Gazette, twenty years ago 10,000 hunters applied for 1,730 permits to hunt and take bear. Today, in excess of 80,000 wannabe black bear hunters applied for 4,405 permits. What’s going on? Check it out.

Tom Remington

It’s Obvious States Are Gearing Up For Hunting Seasons
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All across the country talk is increasing along with excitement as several hunting seasons are upon us. With this increased chatter, it’s easy to browse the Internet and find countless articles loaded with information concerning the upcoming seasons. Here’s a few I have selected for you.

In Minnesota, warnings are up for dog owners, including waterfowl hunting dogs, that a blue-green algae outbreak can kill your dog. With the low water levels and high air temperatures, it is prime breeding for the algae. Dog owners are cautioned.

Shannon Tompkins of the Houston Chronicle is saying that this year’s waterfowl season in Texas should be a good one.

In Skowhegan, Maine, the local chapter of the National Wild Turkey Federation sponsored a free field day for kids. The events provided opportunities for the kids to shoot clay pigeons with shotguns, try their hand at a rifle or a BB gun as well as archery. It was a great event and is retold in an article in the Morning Sentinel by Colen Hickey.

In Pennsylvania, Ron Tussel of the Pocono Record, reminds bobcat hunters that the deadline for applying for a permit is nearing. He also has some great information about bobcats.

The first ever alligator hunt is scheduled to begin soon in Arkansas and all permit holders are required to take an orientation class.

The state of Washington is also gearing up for a great waterfowl season. Get the highlights from Mark Yuasa of the Seattle Times.

If you’re planning a dove hunting trip to Texas, Steve Knight of the Tyler Morning Telegraph tells readers, “Everything You Always Wanted to Know About Dove Hunting“.

Alabama sets bag limits.

Indiana opens for squirrel hunting on Wednesday. Bill Scifries of the Chronicle-Tribune has an article on some of the changes hunters should be aware of for the upcoming seasons.

And for all dog owners preparing their canines for the fall hunting season, Kurt Mueller of the Sheboygan Press gives owners tips on getting your dog tuned up for the fall hunting season.

Let the games begin!

Tom Remington

Infolinks 2013