Judge: Wolverine listing stands during USFWS re-evaluation of science

While the U.S. Fish and Wildlife Service spends another 18 months considering protections for the wolverine, it must keep a previous science-based finding that wolverines need protection, according to the courts.

On Thursday, Missoula federal judge Donald Molloy granted a U.S. Fish and Wildlife Service request to allow the agency 18 months to reconsider its 2020 decision not to list the wolverine under the Endangered Species Act in the lower 48 states. However, in the meantime, Molloy also decided the U.S. Fish and Wildlife Service must stick with its 2013 finding that wolverines warrant listing.

“Based on the Service’s own conceptualization of why remand is appropriate, the ‘fundamental flaws in the agency’s (2020) decision make it unlikely that the same rule would be adopted on remand,’” Molloy wrote.

The conservation groups that sued the U.S. Fish and Wildlife Service in two separate cases over its 2020 decision not to list the wolverine as threatened hailed Molloy’s decision as a victory.

“We are hoping this time is the charm and the Fish and Wildlife Service will follow the courts’ directives to rely on the best available climate science to make the right call to protect wolverines in the lower 48 states,” said Matthew Bishop, attorney with the Helena-based Western Environmental Law Center. “With climate change quickly shrinking the snowy habitat wolverines rely on to survive, there is no time for politics and further delays.”

The 22-year effort to list the wolverine is an indication of how swings in U.S. Fish and Wildlife Service practices and decisions often reflect the politics of various administrations rather than science.

“The Service’s approach to the wolverine’s status under the ESA has been inconsistent,” Molloy wrote.

After conservation groups petitioned the Fish and Wildlife Service in 2000 to list the species - primarily due to the threats of climate change but also habitat fragmentation - the agency under the Bush administration announced in 2008 it wouldn’t do so because wolverines in the lower 48 states aren’t a population distinct from that of Canada and Alaska. Two years later, the Obama administration found wolverines qualified for listing, but the agency couldn’t do anything because there was a backlog of species waiting for protection.

In 2013, the agency reaffirmed its finding that the species in the lower 48 was a distinct population and qualified as threatened. But a year later, the agency withdrew the listing proposal, even though a scientific review panel “expressed pessimism for the long-term (roughly end-of-century) future of wolverines in the contiguous U.S. because of the effects of climate change on habitat.”

Explaining his decision in 2014, USFWS Director Dan Ashe said scientists suspected climate change would affect the wolverine, but the agency had insufficient evidence to establish a strong correlation between dwindling snows and wolverine survival. Twenty environmental groups sued the Fish and Wildlife Service, providing several studies supporting their assertion that the estimated 300 wolverines faced an uncertain future.

In 2016, the last year of the Obama administration, Missoula federal judge Dana Christensen sent the agency back to the drawing board to evaluate whether the wolverine’s small population size could result in genetic problems and whether the species still frequented enough of its former range. And by then, climate change effects were worsening, affecting the severity of wildfires, hurricanes and floods.

“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. It has taken us twenty years to get to this point,” Christensen wrote in 2016.

The Fish and Wildlife Service stalled until conservation groups sued in 2020 to force the agency to follow Christensen’s order.

Finally, in October 2020, the last year of the Trump administration, the Fish and Wildlife Service reasserted its decision not to list, saying the concerns that justified the 2013 decision to list “are not as significant as believed at the time of the proposed rule.” The agency said wolverines in the lower 48 weren’t separate from those in Canada, even though four biologists who reviewed the assessment criticized the decision.

Once again, two-dozen environmental groups sued in December 2020, saying the agency didn’t use the best available science and didn’t properly evaluate the threat or whether wolverines in the lower 48 were a distinct population.

Bishop had filed a Freedom of Information Act request in 2020 and learned that, 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 lower U.S. population isn’t distinct and therefore, it couldn’t be listed.

Only the state of Idaho joined the lawsuit on behalf of the Fish and Wildlife Service in 2021, saying the agency’s 2020 decision against listing should remain in place because Idaho doesn’t want to be bound by the “stale science” of the 2013 decision.

Although the Fish and Wildlife Service agreed to look again at the science, federal attorneys refused to say that the 2020 decision included any errors. That contributed to Molloy’s decision to vacate the 2020 decision.

“While the Service is correct that it has discretion over the weight afforded to scientific studies and the determination of the best available science, it is troubling that the scientific studies that the agency now contends warrant further review existed at the time the Service made its 2020 decision but were not considered,” Molloy wrote.

Amanda Galvan, associate attorney with Earthjustice’s Northern Rockies office said the science shows wolverines in the lower 48 deserve protection.

“FWS previously ignored key studies that illustrate the threats the wolverine continues to face due to global warming. By reviewing a more complete picture of the species’ circumstances, we are hopeful that the agency will identify the need for increased protections,” Galvan said.

Sarah McMillan, senior advisor in WildEarth Guardians’ Missoula office, said she was disappointed that the Fish and Wildlife Service under the Biden administration was defending a decision made under the previous president.

“Wolverines are trapped on the merry-go-round of extinction and the U.S. Fish and Wildlife Service needs to put them on the path toward recovery by protecting them under the Endangered Species Act,” McMillan said.

 The plaintiffs include WildEarth Guardians, Friends Of The Bitterroot, Friends Of The Wild Swan, Swan View Coalition, Oregon Wild, Cascadia Wildlands, Alliance For The Wild Rockies, Cottonwood Environmental Law Center, George Wuerthner, Footloose Montana, Native Ecosystems Council, Wildlands Network, Helena Hunters and Anglers Association, Center for Biological Diversity, Conservation Northwest, Defenders of Wildlife, Friends of the Clearwater, Idaho Conservation League, Jackson Hole Conservation Alliance, Klamath-Siskiyou Wildlands Center, Greater Yellowstone Coalition, Sierra Club, and Rocky Mountain Wild.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.