USFWS drops appeal on basis for wolverine listing decision
The U.S. Fish and Wildlife Service will stick with its 2013 conclusion that wolverines deserve Endangered Species protection while reevaluating whether the species should be listed.
On Friday, U.S. Fish and Wildlife attorneys withdrew their appeal of a May Missoula federal court ruling that the agency must use its 2013 wolverine assessment while deciding whether to list the species. The agency has until November 2023 to reach its conclusion, according to the Missoula ruling.
In May, Missoula federal judge Donald Molloy agreed with wildlife advocates that the agency’s 2020 decision not to protect the wolverine was questionable, partially based on several revelations from a Freedom of Information Act request.
Documents showed that 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, among others - pushed the U.S. Fish and Wildlife Service under the Trump administration to conclude that the U.S. population wasn’t separate from the Canadian population so it couldn’t be listed.
“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.
Molloy ordered the Fish and Wildlife Service to reevaluate its decision within 18 months and to do so using its 2013 finding that wolverines are separate from the Canada populations and qualify as threatened.
On July 28, federal attorneys appealed Molloy’s ruling in the 9th Circuit Court of Appeals but now have pulled that appeal. Earthjustice attorney Tim Preso said the federal attorneys filed the appeal as a placeholder in case their review showed they had a case.
“The government frequently has its decision-making process underway at the time that its deadline for appeal runs. So they often file a notice of appeal as a protective measure so they don’t let the opportunity to slip by before they get a chance to conclude their decision-making process,” Preso said. “They ultimately decided not to pursue an appeal.”
While that appears to go in his clients’ favor, Preso said he wouldn’t assume anything about the agency’s ultimate conclusion, based upon the past 20 years of the U.S. Fish and Wildlife Service reversing its decisions.
It all started in 2000, when wildlife advocates petitioned the agency to list the wolverine due to the threats of climate change and habitat fragmentation. In 2008, under the G.W. Bush administration, the agency refused to list the wolverine, saying the U.S. population wasn’t distinct from that of Canada. Two years later, the agency pivoted, saying the population was distinct but that wolverines had to take a backseat to all the other species awaiting protections.
Spurred by a court ruling to prioritize Endangered Species assessments, the agency concluded in 2013 that the U.S. wolverines were effectively separate from those in Canada and they were much more vulnerable. But a year later, USFWS director Dan Ashe balked at the listing, saying his agency agreed climate change had an effect but itcouldn’t prove a strong correlation between dwindling snowpack due to climate change and wolverine survival.
Twenty environmental groups sued, providing several scientific reports that supported the connection. In 2016, Missoula federal judge Dana Christensen sent the Fish and Wildlife Service back to take another look that the evidence.
After a number of delays, the agency came out with the 2020 decision not to list, again stating that the U.S. population wasn’t distinct and climate change isn’t as big as a problem as the 2013 decision said. Molloy found that the agency again ignored existing science.
“We pointed out to them that there’s all this research showing that intensive trapping in the Rocky Mountains of southern Canada has created this dead zone of very little movement of wolverines back and forth across the U.S.-Canada border. They’re quite separated actually,” Preso said. “(The agency has) now tried twice to get out from under that (2013) proposed listing rule, both times without any merit. I guess we’ll just have to see what happens when they turn back to it. Maybe the third time will be the charm for the wolverine.”
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.