Judge: USFWS wolf decision ignored multiple issues
Laura Lundquist
(Missoula Current) A federal judge has ruled that the U.S. Fish and Wildlife Service must reconsider whether gray wolves in several western states should get endangered species protections.
On Tuesday, Missoula federal district judge Donald Molloy sided with wildlife advocates on most of their charges against the U.S. Fish and Wildlife Service and its February 2024 finding that wolves in the West don’t need federal protection. So he sent the decision back to the agency with a list of the details they should have considered under the Administrative Policy and Endangered Species acts.
As part of its 2024 finding, the agency ruled that the Northern Rocky Mountain population isn’t separate from wolves in other parts of the West, so all wolves qualified to be included in a Western Distinct Population Segment. The 14 plaintiffs had no problem with that. But then, the agency decided that a listing for all those wolves wasn’t warranted, saying there was no chance of wolves going extinct. The plaintiffs and the judge took issue with the agency’s justifications.
“Here, the Service failed to, (among other things), consider historic range in its assessment of whether the Western (distinct population segment) gray wolf population meets the definition of either ‘endangered’ or ‘threatened’ through ‘a significant portion of its range.’ It also made numerous unfounded assumptions regarding the future condition of the gray wolf, despite recognizing either limitations on those conditions or bias on the population estimates,” Molloy wrote in his 105-page ruling.
A recent Supreme Court decision, referred to as “Loper Bright,” enabled Molloy to rule that the Fish and Wildlife Service should have considered all the wolf’s historic range when deciding if the species qualified for protection. He couldn’t have done that prior to Loper Bright, when federal courts had to defer to agencies’ expertise, and in recent years, the Fish and Wildlife Service has considered only a species’ current range. That changed Tuesday.
“To the contrary, Loper Bright makes very clear that Chevron deference is incompatible with the (Administrative Policy Act), which requires courts to ‘decide all relevant questions of law’, and ‘interpret statutory provisions,’” Molloy wrote.
Molloy pointed out that, after the gray wolf was extirpated in the 1930s, the Fish and Wildlife Service definition wouldn’t have included the Northern Rocky Mountains, where wolves are now well established. Similarly, the Fish and Wildlife Service should have included Colorado, which had a few colonizing wolves but which now has an experimental population.
Molloy also found that the Fish and Wildlife Service failed to use the best-available science when making its assumptions about the viability of Western wolf populations. And the agency didn’t consider what would happen if some of its assumptions were wrong.
The agency used wolf population estimates provided by the states, even though questions have been raised regarding Idaho’s trail-camera method and Montana’s integrated patch occupancy model. Critics have said both methods overestimate populations. Molloy said the Fish and Wildlife Service accepted the estimates anyway without properly addressing some of the criticisms.
The agency also didn’t use the most accepted method for calculating the wolf population size needed to maintain genetic health. The agency used an older guideline called the 50/500 Rule without justifying its use except to say that populations aren’t isolated so fewer wolves were needed. That rule requires 50 breeding individuals for short-term health and 500 for long-term survival. Biologists now subscribe to the 100/1000 Rule, which obviously doubles the number of breeding individuals required. And since not all individuals breed, the total population needs to be even greater.
Molloy didn’t agree with the plaintiffs on their claim that the Fish and Wildlife Service didn’t fully consider current challenges for wolf populations, since wolf numbers are slowly increasing on the West Coast. But that didn’t mean the situation would stay that way, and yet, that’s what the Fish and Wildlife Service assumed in some cases.
For example, the agency assumed connectivity would remain constant. But with Montana and Idaho passing laws to manage their populations down to a minimum, it’s unknown whether or how many wolves might continue to migrate out when the population is low. The agency’s modeling shows the wolf populations may decline by up to 68% in the Northern Rocky Mountains and 80-90% in Montana and Idaho over the next five to 10 years.
“While the Service recognized the existence of uncertainty in this area, it merely assumed that that uncertainty would not fatally undermine its conclusion,” Molloy wrote. “But an absence of evidence regarding future connectivity is not the same as evidence of continued connectivity.”
Based upon recent events, Molloy said the other aspect that is unlikely to remain constant is the states’ commitment to managing wolves at a sustainable level. Montana and Idaho are supposed to ensure their wolf populations don’t drop below 150 at a minimum. But that’s unlikely, Molly wrote, when the two states use biased population estimate models that don’t respond to localized changes. In addition, the Fish and Wildlife Service model assumes that the states will stop the population decline at 150 so the model never shows what might actually happen to wolves if the states fail to step in or stop too late.
“This indicates that if this assumption is violated, the gray wolf species may be threatened or at risk of extinction. But instead of confronting this information, the Service allowed the state commitments to dictate its model results, permitting the tail to wag the wolf,” Molloy wrote.
The model also makes the flawed assumption that poaching would stop once the wolf populations dropped to 150.
Finally, the Endangered Species Act requires the Fish and Wildlife Service to consider whether a species could be harmed by “the inadequacy of existing regulatory mechanisms.” After wolves were delisted in 2011 in the Northern Rocky Mountains, Montana established a sustainable management plan, and over time, both wolves and people adjusted. But wildlife regulations have changed a great deal in the past five years, and many legislated changes have gone against predators, particularly wolves. Each Legislative session has passed more mandates for new methods of killing and population limits, further eroding what regulatory mechanisms existed.
The plaintiffs said the Fish and Wildlife Service didn't factor in how polarized wolf management has become under different administrations, both state and federal. Based upon the recent changes, Molloy agreed.
“The Service did not consider how these negative public attitudes, undisputedly expressed in the legislative bodies governing Montana and Idaho, would impact that states’ commitments to maintain minimum wolf populations. This further undermines the agency’s reliance on these commitments to find that the state regulations are adequate to protect the gray wolf in the future,” Molloy wrote.
On Tuesday, wildlife advocates celebrated the ruling.
“The Endangered Species Act requires the U.S. Fish and Wildlife Service to consider the best available science, and that requirement is what won the day for wolves in this case,” said Western Environmental Law Center senior attorney Matthew Bishop, who presented the science during the June 18 oral arguments. “Wolves have yet to recover across the West, and allowing a few states to undertake aggressive wolf-killing regimes is inconsistent with the law. We hope this decision will encourage the Service to undertake a holistic approach to wolf recovery in the West.”
The conservation organizations that filed one case are Western Watersheds Project, WildEarth Guardians, International Wildlife Coexistence Network, Predator Defense, Protect the Wolves, Trap Free Montana, Wilderness Watch, Alliance for the Wild Rockies, Friends of the Clearwater, and Nimiipuu Protecting the Environment. Two similar cases were filed by Center for Biological Diversity, Sierra Club, Humane World for Animals, and Humane World Action Fund.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.