On April 4, 2016, the U.S. District Court for the District of Montana vacated the U.S. Fish and Wildlife Service’s (Service) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the North American wolverine (Withdrawal). The Withdrawal signaled a complete departure from the Service’s February 2013 proposed rule to list the wolverine as a threatened species under the Endangered Species Act (ESA). The court’s decision is the newest chapter in what has been a contentious and storied path to a listing decision for the North American wolverine (Gulo gulo luscus). The Service’s decision-making with respect to the wolverine has been challenged at every stage of the ESA section 4 listing process, and, similar to the polar bear, much of the focus has been on whether the anticipated impacts of climate change support a listing. In this instance, several environmental organizations challenged the Withdrawal, arguing that:
(1) the Service unlawfully ignored the best available science by dismissing the threat to the wolverine posed by climate change;
(2) the Service unlawfully ignored the best available science by dismissing the threat to the wolverine posed by genetic isolation and small population size;
(3) the Service unlawfully ignored the best available science by dismissing other threats to the wolverine, including, either independently or in concert with climate change, trapping and infrastructure development;
(4) the Service failed to evaluate whether the inadequacy of existing regulatory mechanisms threatens the wolverine; and
(5) the Service's "significant portion of its range" policy is invalid on its face and as applied to the wolverine.
Noting that the Withdrawal was likely the result of immense political pressure by several western states (several of which appeared in the case as intervenor-defendants), the court was persuaded by the plaintiffs’ argument that the Service ignored the best available science, noting, if ever there was a species for which conservation depends on foregoing absolute certainty, it is the wolverine. The court was emphatic in its conclusions, stating: No greater level of certainty is needed to see the writing on the wall for this snow-dependent species standing squarely in the path of global climate change. The court granted plaintiffs’ motion for summary judgment for arguments (1) and (2), declined to address arguments (3) and (4), and rejected plaintiffs’ facial challenge to the Service’s significant portion of its range policy. Finally, the court rejected non-governmental intervenors’ argument challenging the Service’s ability to list a subspecies of a species as a distinct population segment. As a result of the court’s decision, the Withdrawal has been vacated and remanded to the Service for further consideration consistent with the court’s order.
Brooke Marcus Wahlberg is a natural resources lawyer focused on powering the economy while maintaining compliance with environmental laws. She is go-to counsel for matters involving the Endangered Species Act (ESA), the ...
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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