The Endangered Species Act Is Now Endangering Our Species
by Tom Remington at Black Bear Blog, September 30, 2008 [here]
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 [here] 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 [from the ES list] 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 about 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 [the USFWS] 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, and the only way the wolf can ever be removed from ESA listing is when it can be done 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 to be listed 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 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.
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Merry Christmas from Wildlife and People
Merry Christmas from Wildlife and People. Best wishes to you and yours.
Due to the exigencies of the Season, and general Goodwill, we are going to rest SOS Forests and Wildlife and People, the two W.I.S.E. Commentary subsites, and work on the W.I.S.E. Colloquia over the Holidays.
Then we will hit the New Year running. We have high hopes for 2008. We are going to effect some changes, and maybe even save some forests. That’s the Plan, anyway.
Keep the comments coming; I’m merely refraining from adding new Commentary posts for a little bit. Look for more great references to appear in the W.I.S.E. Colloquia, though.
Guest essays are always welcome.
May all your Christmases be bright, including this one.
