Dancing (In Celebration) With Wolves

Posted by Tony Eliseuson, ALDF Volunteer Attorney Member on September 30, 2008

As reported by CNN and other sources, United States District Court Judge Paul Friedman ruled yesterday that the United States Fish and Wildlife Service (“Fish and Wildlife Service”) may have improperly removed the Great Lakes Gray Wolves from the endangered species list.  The court found that the Fish and Wildlife Service failed to address critical statutory ambiguities in the Endangered Species Act in promulgating a final rule that had delisted the Great Lakes Gray Wolves.  Importantly, the court not only disagreed with the agency’s interpretation of the Endangered Species Act, it also exercised its discretion to vacate the rule they promulgated before remanding.  This means the Great Lakes Gray Wolf will remain protected while the agency reconsiders its position. A PDF copy of Judge Friedman’s opinion can be found here, and the case is entitled The Humane Society of the United States v. Kempthorne, Case No. 07-0677 (D.D.C. 2008).  

The court’s decision in Kempthorne is the second recent victory for the gray wolf.  Last month, the Fish and Wildlife Service was allowed to voluntarily return the Rocky Mountain gray Wolf to the endangered species list after the judge in that case had enjoined wolf hunts in several Rocky Mountain states in response to a challenge by animal rights groups to the Fish and Wildlife Service’s proposal to delist the Rocky Mountain Gray Wolf.   

These are important victories not only for the gray wolf, but for endangered species more generally. In recent years the Fish and Wildlife Service had been more aggressive in delisting endangered species. According to CNN, an attorney from the Center for Biological Diversity pointed out that “[t]he Bush administration’s repeated attempts to push the limits of the Endangered Species Act [toward delisting] have been decidedly rejected by the courts,” including this most recent ruling by Judge Friedman.

Under the Endangered Species Act, the Fish and Wildlife Service has the authority to list endangered or threaten “species,” and the term “species” is defined to include a “distinct population segment” or DPS.  (Op. at 1-2.)  Accordingly, courts have held that the Fish and Wildlife Service has the authority to recognize that a specific DPS is endangered or threatened, and to list only that DPS as endangered under the Endangered Species Act. (Id. at 7.) 

In Kempthorne, however, the issue was whether the Fish and Wildlife Service could do the opposite: create a specific DPS of an otherwise endangered species, and then enter a rule finding that such DPS should be delisted even though the “species” in general remained endangered. (Id. at 1-2, 6-7.) Specifically, in Kempthorne, the gray wolf was a listed “species.” The Fish and Wildlife Service then decided to designate a specific cluster of the gray wolf, the Great Lakes Gray Wolf, as a DPS.  The Fish and Wildlife Service then found that this DPS of the gray wolf was no longer endangered or threatened and delisted it. (Id.) 

The plaintiffs in Kempthorne raised several arguments as to why the Fish and Wildlife Service’s action in this regard was in error, including the argument that a DPS could not be created in order to delist that DPS under the Endangered Species Act. (Id. at 10-11.) The court found this argument dispositive because it disagreed with the Fish and Wildlife Service’s determination that the use of the DPS as a delisting tool was unambiguously supported by the text of the Endangered Species Act. The court rejected the Fish and Wildlife Service’s reading of the Endangered Species Act, and remanded the issue to the agency because the Endangered Species Act  was, at best, ambiguous on this point.  (Id. at 13-24 (discussing the text and legislative history of the Endangered Species Act with regard to this issue).)  Accordingly, the court ordered the Fish and Wildlife Service to “at a minimum . . . explain how its interpretation of the statue conforms to the text, structure and legislative history of the Endangered Species Act; how its interpretation is consistent with judicial interpretations of the Endangered Species Act (if there are any on point); and how its interpretation serves the Endangered Species Act’s myriad policy objectives. It must also address any legitimate concerns that its interpretation could undermine those policy objectives.” (Id. at 24.) 

Thus, the next step lies with the Fish and Wildlife Service to justify its interpretation of the Endangered Species Act. But in light of the court’s decision, it will be difficult for the Fish and Wildlife Service to justify its policy of delisting subsets of endangered species under an act that was designed to protect species and the ecosystems upon which they depend. Hopefully this time the Fish and Wildlife Service will actually consider that purpose before reaching a decision on the gray wolf.