Federal Appeals Court Keeps Great Lakes Grey Wolves Listed As Threatened

by Nossaman LLP

On August 1, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in Humane Society of the U.S. v. Zinke, Case No. 15-5041 (Aug. 1, 2017), affirming a district court decision that keeps the Western Great Lakes Distinct Population Segment (“DPS”) of Grey Wolves on the List of Endangered and Threatened Species.  Plaintiffs in the case allege that the Secretary of the Interior and U.S. Fish and Wildlife Service’s (collectively, “Service”) 2011 Final Rule (“Rule”) removing the DPS from the list of endangered and threatened species failed to consider two key impacts that the Rule would likely have.  Specifically, plaintiffs argued that the Service failed to “reasonably analyze or consider . . . the impacts of partial delisting and the historical range loss on the already-listed species . . . .”

Regional subspecies of gray wolf were listed as “endangered” under the Endangered Species Act (“ESA”) between 1966 and 1976. The Service later revised these listings to be a single listing for the gray wolf split between the Minnesota population, which had recovered enough to qualify as “threatened”, and the gray wolf in the remaining 47 states in which it occurred, which remained endangered.  In 2003, the Service again reclassified the gray wolf, splitting the listed populations into three DPS – the Eastern DPS, Western DPS, and Southwestern DPS – and downgrading the Eastern and Western DPS to “threatened” from “endangered.”  The 2003 reclassification was struck down by two separate court decisions finding that the Service had failed to meet the ESA’s requirements for such reclassifications, sparking successive attempts to delist the Great Lakes population by the Service, ultimately leading to this lawsuit.

The Service again reclassified populations of gray wolves in 2007, creating the Western Great Lakes DPS and removing it from the ESA’s protections. Within a year, the 2007 reclassification was reversed by a federal court. See Humane Soc’y of the U.S. v. Kempthorne, 579 F.Supp.2d 7, 9 (D.D.C. 2008).  The Service attempted to delist the Western Great Lakes DPS again in 2009 and was again rebuffed by a federal court.  Finally, the Service issued the Rule in 2011, which revised the boundaries of the existing Minnesota gray wolf population by creating the Western Great Lakes DPS, and then delisted that DPS.

Plaintiffs filed suit, challenging the Service’s action and alleging that the Service’s carve out of a DPS from a listed population for the sole purpose of delisting that DPS violated the ESA. Although the Court held that the Service is permitted to create a DPS for the sole purpose of removing it from the ESA’s protections, the Court found that such action is appropriate “only when the Service first makes the proper findings.”  Here, the Court found that the Service failed to make the proper findings in two material respects.  First, the Service failed to evaluate the impact to the species as a whole if the DPS were removed from the ESA’s protections.  Second, the Service failed to evaluate whether or not the remaining U.S. gray wolves constitute either a subspecies or a population segment.  The Service did, however, determine that the remaining gray wolf populations were not a “species” and proposed to delist them for that reason alone.  Among other issues with the Services analysis, the Court held that the Service failed to analyze the Western Great Lakes DPS’ candidacy for delisting within the context of the historical range of gray wolves.  Due to the particular history of this case and the seriousness of the Service’s missteps, the Court held that vacatur of the Rule rather than remand to the Service was appropriate.  This, for the time being, retains the Minnesota population’s listing status as threatened and the remaining gray wolf population listed as endangered.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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