Conflicting court rulings bedevil wolf listing case

Laura Lundquist

(Missoula Current) After an earlier Supreme Court ruling negated “Chevron deference,” a federal district judge is trying to work out whether he can decide the definition of “range” for wolves of the West or whether he must accept an agency’s restricted definition.

During oral arguments Wednesday morning, federal district judge Donald Molloy asked attorneys to restrict themselves to three aspects of a lawsuit alleging the U.S. Fish and Wildlife Service was wrong in its decision not to give endangered species protections back to wolves in the Northern Rocky Mountains.

The three aspects involved questions of how the Fish and Wildlife Service defined the geographical range of the wolf, what it used for the best-available science, and how it evaluated regulatory mechanisms at the state level to reach its February 2024 decision that wolves in Montana, Idaho and Wyoming didn’t need protection. Wolves in the rest of the West are still protected under the Endangered Species Act.

To be listed as “endangered,” the law says the species has to be “in danger of extinction throughout all or a significant portion of its range.” The definition of “threatened” is similar. The plaintiffs, which included several wildlife advocacy groups, argue that the wolf’s range should include areas where it once roamed because wolves are moving back into some of those areas. But in its decision, the Fish and Wildlife Service chose to consider only areas currently occupied by wolves and limited its population analysis to those areas.

Wolves are in less danger of extinction where they already exist, but that changes if range is expanded across the West. Plaintiff attorney Margaret Robinson gave the example of a site in northern Colorado where two migratory wolves reside.

“(The Fish and Wildlife Service) limited its analysis to this single dot in northern Colorado. But there’s abundant record evidence that the occupied range for wolves expanded before the agency made its decision in 2024 and that’s through reintroduction effort in 2023,” Robinson said. “The Service itself recognized that wolves aren’t limited to artificial dots on a range map and recognized that wolves could travel widely in the state.”

Sarah Warren, arguing for the U.S. Department of the Interior, said the dictionary definition of range is where a species currently exists and the word “endangered” is the current status of a species.

“The Service has explained, to say a species is endangered in an area where it no longer exists, that is in its historical range where it has been extirpated, is inconsistent with common usage,” Warren said.

What appeared to trouble Molloy was how he was to rule on the question of geographic range, now that recent court rulings have muddied the legal waters. Prior to 2024, he or any federal judge would have usually deferred to a federal agency’s expertise under a legal precedent called “Chevron deference.” But in a ruling last year, the Supreme Court negated Chevron deference, giving judges instead of agencies the power to decide what a law requires if the law’s language is ambiguous.

However, a Ninth Circuit Court of Appeals ruling related to the arctic grayling would require Molloy to use the agency’s 2014 interpretation of range, which is different from that outlined in the wolf ruling. Finally, another Supreme Court ruling referred to as “Lopez” said a district court can’t overrule existing precedent of a higher court even if it’s bad law.

Molloy said the three rulings were irreconcilable and asked both attorneys what they thought.

“Do I have to rely on the agency’s interpretation or my obligation to interpret the phrase that you referenced by my understanding using the tools of statutory interpretation,” Molloy said.

Not surprisingly, the two attorneys had different opinions. Robinson said the Lopez ruling still allows the judge to revisit a ruling if an agency redefines an interpretation of a statute, such as the Fish and Wildlife Service changing the definition of range. Warren said Molloy should follow the Ninth Circuit 2014 ruling, but Molloy could make his own decision if he didn’t feel bound by the Ninth Circuit.

After commenting that some of the issues regarding range were troubling, Molloy moved on to the questions of the best-available science. The law requires agencies to use the best-available science when making decisions but the plaintiffs said the Fish and Wildlife Service didn’t do that.

Plaintiff’s attorney Matt Bishop cited four areas related to genetics where the agency didn’t meet the bar. 1) It didn’t use information from a 2023 genetics study by Wisconsin researcher Bridgett vonHoldt that indicates the wolf population is too small to avoid long-term extinction risks. 2) The agency did an internal review but didn’t allow the public to view their data. 3) It didn’t use a population rule-of-thumb that requires 50 breeding wolves for short-term genetic health and 500 for long-term health. 4) The agency population model didn’t consider the negative effects of small populations, such as inbreeding or stochastic events, because the population couldn’t get low enough under the constraints of the model.

“As noted during the peer review, Dr. Ausband said, ‘If you’re going to include such assumptions in the model, then what’s the point of even having a model?' What’s the point of having a threshold for a small population size if it’s impossible to reach it? This makes the model 'superfluous and misleading,’” Bishop said.

Warren said the vonHoldt paper wasn’t included because it came out only weeks before the decision, and the Fish and Wildlife Service said there was missing data. Warren also said the 50/500 rule is just guidance and it assumes isolated populations, which wolves are not since they’re connected to populations in Canada.

“Just a few immigrants every year from Canada contributes to the genetic diversity of the metapopulation,” Warren said. “In considering the Canadian population of wolves, the Service was simply accounting for facts on the ground. There’s consistent gene flow from Canada to the United States and it doesn’t take much. If the Service ignored that gene flow, it would have ignored the best available information.”

Turning to the effects of state wolf regulation, plaintiff attorney Kathryn Schultz argued that two states, Idaho and Montana, use models to estimate population size, which can be inaccurate when populations drop to low levels. And low levels are what states want. Montana wants to manage down to 450 wolves - the 2023 population was estimated between 993 and 1,210 wolves - and Idaho to 500 wolves.

To reduce the populations, the states have allowed more liberal hunting and trapping rules since 2021, which are partly what prompted the lawsuit. Molloy pointed out that the law allows states to regulate hunting and trapping. Schultz agreed but said the Fish and Wildlife Service hadn’t analyzed for super-additive effects of hunting - effects that kick in for small populations - and didn’t adequately account for poaching and livestock producers’ kills. She added that poisoning deaths are on the rise in Washington and Oregon.

“The service didn’t adequately analyze the impacts of the new regulatory regimes on the level of wolf mortalities,” Schultz said. “It can’t just be an analysis; ‘meaningful’ has to mean something. The Service didn’t undertake a meaningful analysis in the face of uncertainty. They just checked off the boxes.”

Warren countered by saying more permissive hunting is not unregulated hunting and the states have frameworks in place to ensure the populations don’t drop below 150 in each state. Molloy interrupted, asking how the states would know when they’ve dropped below 150.

Warren said the states would “in all likelihood” modify the hunting season as the populations each approach 150. In any case, the Fish and Wildlife Service accounted for such situations by running scenarios in its model, including one where the populations in each state are at the minimum number. The model depends on enough wolves remaining in national parks and wilderness areas where it’s harder to hunt wolves.

Molloy persisted, asking how the states would know when they were approaching 150 if they didn't conduct counts. He said the wolf previously went locally extinct because of excessive killing due to trapping, hunting bounties and hunting from small aircraft. How had the Service accounted for that now that those methods are being used again, Molloy asked. Warren said state management is different now.

“The difference between the 1930s and today is how we manage hunting and wildlife in general, including trapping,” Warren said. “Those protections were in place at the time the Service made its not-warranted finding. And the Service has to take the world as it is. It accounts for increases in hunting but it also has to account for the law as the law is.”

Molloy said he’d get a ruling out as soon as he could.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.