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Wolverine ESA listing heads back to Missoula federal district court

It’s believed that only 300 wolverines remain in the lower 48 states. (Fish and Wildlife Service)

Conservation groups have filed two lawsuits against the U.S. Fish and Wildlife Service for refusing a second time to list the wolverine under the Endangered Species Act. But this time, the agency appears to have bowed to industry’s bidding.

On Monday, Matthew Bishop, an attorney with the Western Environmental Law Center, filed a lawsuit in Missoula federal district court on behalf of 13 conservation groups, accusing the U.S. Fish and Wildlife Service of ignoring the best available science, particularly related to climate change, that shows wolverines face an uncertain future.

Earthjustice filed a second lawsuit on behalf of nine other organizations. The two lawsuits will probably be combined.

“The wolverine is a famously tough creature that doesn’t back down from anything, but even the wolverine can’t overcome climate change by itself,” said Earthjustice attorney Amanda Galvan. “To survive, the wolverine needs the protections that only the Endangered Species Act can provide.”

Wolverines are elusive and can travel for dozens of miles in a day, making them difficult to track. However, it’s believed that only about 300 live in the lower 48 states so they are at risk of low genetic diversity and their habitat is threatened by human development and climate change because they need deep snow to den in.

The conservation groups have filed a series of lawsuits since 2013 as the U.S. Fish and Wildlife Service has repeatedly failed to use the best available science to underpin its decisions.

This round of litigation will reiterate many of the issues already covered in previous lawsuits, because no new science has emerged showing the previous research was wrong, Bishop said. Climate change is even more of a threat. But, there will be one difference this time.

“The one thing that did change was (the agency) said that ‘not only do we not think they’re threatened but we don’t think they even qualify as a (distinct population) species that we can list in the lower 48.’ That’s brand new – that’s probably going to be obviously the first issue we deal with,” Bishop said.

Thousands of wolverines range in northern Canada, but in 2010, the U.S. Fish and Wildlife Service concluded that wolverines in the U.S. qualified as a distinct population because they face more and different threats than wolverines in large, wild regions of the Canadian Rockies. The U.S. population is much more vulnerable, the agency concluded.

But during the Trump administration, groups opposed to the wolverine listing – including the states of Montana and Wyoming, regional snowmobile clubs, the National Petroleum Institute and the Montana Petroleum Association – pushed the U.S. Fish and Wildlife Service to rule that the U.S. population isn’t distinct and therefore, it can’t be listed. In its most recent decision on Oct. 8, the agency agreed, even though four biologists who reviewed the assessment criticized the decision.

Bishop learned of this after filing a Freedom of Information Act request for documents related to the agency’s most recent assessment of the wolverine. He was disappointed to discover the agency hadn’t conducted an open public process, selectively barring conservation groups from commenting.

“The states and the industry groups were pushing it, so (the agency) basically – from my take – responded to that request,” Bishop said. “What’s amazing is the conservation community and even the wolverine biologists who worked on the proposed listing rule, none of us had access to the species assessment. But (the agency) shared a draft of it with the states and the industry groups, and sure enough, they all submitted comments. This was the issue they pushed.”

The groups issued their intent to sue 60 days ago, giving the agency an opportunity to reconsider its Oct. 8 decision against listing the wolverine. In that decision, the U.S. Fish and Wildlife Service concluded conditions weren’t as dire as the agency first believed in 2013 when it first proposed listing the species and no distinct population existed. The groups said the U.S. Fish and Wildlife Service did no scientific review to justify that. But the agency has refused to look further.

The Oct. 8 decision was the final outcome of a previous lawsuit the groups filed accusing the agency once again of ignoring climate change science when it decided not to list in 2014.

At the end of the case in 2016, Missoula federal court judge Dana Christensen agreed with the conservationists and ordered the USFWS to reevaluate the wolverine’s status, especially in light of climate change effects that modify or reduce mountain snowpack that can affect wolverine denning.

“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,” Christensen wrote in 2016.

For the next four years, the U.S. Fish and Wildlife Service did nothing.

This March, the groups sued to force the agency to take action, which led to its Oct. 8 decision.

With a new administration taking over next year, Bishop said some people are hopeful that the U.S. Fish and Wildlife Service will carry out a proper review. But he’s not so sure.

“With the people who are making these decisions, they’re the same ones that were there under the old 2016 decision,” Bishop said. “But I hope we have a (court) decision within a year.”

The groups suing the U.S. Fish and Wildlife Service include Earthjustice, Alliance for the Wild Rockies, WildEarth Guardians, Friends Of The Bitterroot, Friends Of The Wild Swan, Swan View Coalition, Oregon Wild, Cascadia Wildlands, Cottonwood Environmental Law Center, George Wuerthner, Footloose Montana, Native Ecosystems Council, Wildlands Network, Helena Hunters and Anglers Association, Center for Biological Diversity, Friends of the Clearwater, Idaho Conservation League, Defenders of Wildlife, Greater Yellowstone Coalition, Conservation Northwest, KS Wild, Sierra Club, and Jackson Hole Conservation Alliance.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.