Gray Wolf Removed from Endangered Species List & Environmental Groups File Notice of Intent to Sue

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On November 3, 2020, the United States Fish & Wildlife Service (“Service”) published a final rule removing the gray wolf (canis lupus) from the federal list of Endangered and Threatened Species in the lower 48 United States and Mexico. The rule will take effect on January 4, 2021. At the same time, the Service denied a petition, filed by environmental groups, to maintain protections for the gray wolf in the lower 48 United States. However, the Service did maintain the separate listing of the Mexican wolf subspecies as endangered, a listing that was put in place on January 16, 2015; the Service also maintained the separate listing of the red wolf, which was declared extinct in the wild in 1980 but survives in a captive breeding program and a reintroduced experimental population.

The Service’s rule has already drawn a threat of litigation from a coalition of environmental groups, including the Sierra Club and the Center for Biological Diversity, who have sent the Service a notice of intent to sue to overturn the rule. It could also potentially be subject to repeal under the Congressional Review Act (“CRA”), which allows Congress to negate administrative rules by passing a joint resolution of disapproval within 60 legislative days of a rule’s submission to Congress, although the likelihood of that outcome will depend on the final composition of the Senate following the upcoming runoff elections in Georgia.

The gray wolf was originally protected in 1967 under the Endangered Species Preservation Act of 1966, a predecessor to the Endangered Species Act, which was enacted in 1973. In 1978, the gray wolf was listed as endangered throughout the lower 48 United States, except for the population in Minnesota, which was listed as threatened. At that time, the Minnesota wolf population was the only major U.S. population in existence outside Alaska (where gray wolves were never listed as threatened or endangered), and numbered about 1,200 individuals, including an isolated population of about 40 wolves on Isle Royale in Lake Superior. In 1995 and 1996, 66 wolves from southwestern Canada were reintroduced into Yellowstone National Park and central Idaho; wolves from Canada have also recolonized parts of the lower 48 United States. As we reported in March 2019, when the new rule was proposed, the Service now estimates that there is a Great Lakes meta-population with approximately 4,400 individuals, and a Rocky Mountain/western Canadian meta-population with approximately 16,000 individuals (approximately 2,400 of which were in the United States) that continues to expand into Oregon, Washington, and California. The Service believes that these populations are now stable enough that the species should be delisted.

The Service has sought to delist some or all of the gray wolf population in the lower 48 United States since 2000, when it proposed the first of several rules identifying “distinct population segments” (DPS) for the gray wolf, and either designating those DPSs as threatened instead of endangered, or delisting them altogether. Over the intervening 20 years, the Service’s attempts to change the listing status of the gray wolf have been the subject of extensive litigation by conservation groups, and nearly all of them were vacated by the courts for failure to comply with the Endangered Species Act; in fact, the final rule includes a chart identifying the Service’s various regulatory actions involving the gray wolf since 1967, and identifies federal court cases vacating seven separate rules involving the gray wolf’s listing status since 2003.

While the historical context of this year’s rule began as early as 2000, the most recent chapter in that saga began in December of 2011, when the Service published a final rule revising the listing for the Western Great Lakes (WGL) wolf population (located mainly in Minnesota, Michigan, and Wisconsin), classifying that population as the WGL DPS, and removing that population from the list of threatened and endangered species due to its recovery. That rule was later vacated by the U.S. District Court for the District of Columbia in 2014, which held that the Service could not identify a DPS solely for the purpose of delisting it. Humane Soc’y of the U.S. v. Jewell, 76 F. Supp. 3d 69, 112–13 (D.D.C. 2014). In 2017, the Court of Appeals for the District of Columbia Circuit overruled the district court and found that the Service could designate a DPS for the purpose of delisting that DPS, but it upheld the portion of the district court’s decision vacating the delisting rule, concluding that the Service failed to consider the impacts of the DPS’s delisting on the rest of the species and the impacts of the loss of the historical range of the species. Humane Soc’y of the U.S. v. Zinke, 865 F.3d 585, 602-03, 605-07 (D.C. Cir. 2017).

Separately, the Service’s attempts to delist portions of the gray wolf population in the Northern Rocky Mountains (“NRM”) DPS – specifically, in Montana and Idaho, but not Wyoming – were also vacated by a federal court in 2010, Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010), but in 2011, Congress passed a law requiring reinstatement of that rule. That law was upheld in 2012, Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170 (9th Cir. 2012), thus leaving the gray wolf listed as endangered in Wyoming but delisted in Montana and Idaho. The Service then published a rule delisting the gray wolf in Wyoming in 2012. As with the WGL DPS rule, the delisting of gray wolves in Wyoming was vacated by the U.S. District Court for the District of Columbia for violations of the Endangered Species Act in 2014, Defenders of Wildlife v. Jewell, 68 F. Supp. 3d 193 (D.D.C. 2014), but that decision was reversed on appeal in 2017. Defenders of Wildlife v. Zinke, 849 F.3d 1077 (D.C. Cir. 2017). Hence, after the 2017 decisions by the Court of Appeals for the District of Columbia Circuit, the gray wolf was delisted in the NRM (now encompassing Montana, Idaho, Wyoming, and parts of Utah, Oregon and Washington), listed as threatened in Minnesota, and listed as endangered in the remainder of the lower 48 United States and Mexico.

This month’s final rule implements the Service’s March 15, 2019 proposal to delist the gray wolf entirely in the lower 48 United States, which was previously reported on our blog. In the final rule, the Service found that the gray wolf has met the recovery criteria in both the NRM and WGL DPSs, and that the population continues to expand in both numbers and geographic area. The Service also examined state laws regulating human caused mortality – the main factor responsible for the original decline of gray wolves – and found that returning regulatory authority over wolves to the states would not cause an increase in human-caused mortality sufficient to reduce the population below recovery levels, since the states where gray wolves occur have enacted laws and regulations that provide sufficient protection for wolves.

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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