Court Holds Lack of Specificity Dooms Wyoming Wolf Delisting
Posted in Court Decisions

On September 23, 2014, the U.S. District Court for the District of Columbia invalidated the final rule issued by the U.S. Fish and Wildlife Service (Service) delisting the Wyoming Gray Wolf distinct population segment from the Federal List of Endangered and Threatened Species, concluding that Wyoming's regulatory protections were unenforceable and therefore inadequate for purposes of delisting the species.  Despite this conclusion, the court still affirmed the Service's finding that the species has "recovered" and that it was not "endangered or threatened within a significant portion of its range."  Defenders of Wildlife v. Jewell, No. 12-1833 (D.D.C. Sept. 23, 2014) (pdf).

As acknowledged by the court, the Gray wolf has "a complex and contentious history."  In 1980, the Service listed the Gray wolf in the northern Rocky Mountain (NRM) region (which includes Idaho, Montana, and Wyoming) as endangered under the federal Endangered Species Act (ESA).  In 1987, the Service identified three recovery areas in the NRM region most likely to support a recovered wolf population, and established a recovery goal for the species.  In 1994, the Service modified the recovery goal.

In 2003, after finding that the gray wolf populations had recovered from the threat of extinction, the Service reclassified and delisted the gray wolf incrementally across three distinct population segments.  However, a court eventually found that this action violated the ESA.  In 2008, the Service issued a final rule (i) recognizing NRM distinct population segments (NRM DPS) for Idaho, Montana and Wyoming, and (ii) delisting each of the NRM DPS.  However, a federal court again invalidated the Service's final rule.  In 2009, the Service issued another final rule, this time delisting only the Idaho and Montana DPS.  But again, a federal court invalidated the Service's delisting attempt.  Shortly thereafter, pursuant to Congressional direction, the Service issued another final rule delisting the species in Idaho and Montana, but not in Wyoming.

In light of the Service's decision not to delist the Wyoming DPS, the State of Wyoming amended its statutes and regulations to, among other things, require the State "to reasonably ensure at least ten (10) breeding pairs of gray wolves and at least one hundred (100) individual gray wolves" outside of designated federal lands.  In light of these amendments, in 2011 the Service issued a proposed rule delisting the Wyoming DPS.  The Service also commissioned an independent review by five scientists.  Two of these scientists concluded that delisting was improper because there was no established "minimum population buffer" above the 10 breeding pairs.  In response, the State of Wyoming issued an Addendum to its wolf management plan clarifying the State's "commit[ment] to manage for a recovered, stable, and sustainable wolf population."  Although the Addendum did not provide a specific numerical minimum population buffer, the Service incorporated the Addendum into the 2012 final rule (2012 Rule) delisting the Wyoming DPS.

Plaintiffs challenged the 2012 Rule on three grounds: (1) Wyoming's statutory and regulatory regime was inadequate; (2) there is inadequate genetic connectivity between subpopulations; and (3) the Service improperly concluded that wolves are not imperiled throughout a "significant" portion of their range.  The district court agreed with plaintiffs' first contention.  In reaching this conclusion, the court rejected the State's argument that it need only maintain 10 breeding pairs in order to uphold the delisting, finding that the Service had determined that Wyoming would need to manage the population "above" the minimum requirement.  Thus, the court phrased the issue as follows: "[W]hether it was proper for [the Service] to rely on nonbinding and unenforceable representations [in the Addendum] when it concluded that the state's plan was adequate to ensure that the state will in fact maintain the necessary number of breeding pairs and individual wolves."  After noting that there was "little legal authority" addressing the question, the court found that the Service's "reliance on mere assurances was inappropriate, and it rendered [the Service's] decision arbitrary and capricious."

  • Benjamin Z. Rubin

    Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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