This paper focuses on the changes that have occurred from 2005 to the present in each DPS, including three non-essential experimental populations located in Yellowstone, Central Idaho, and the southwestern U.S.; the Northern Rocky Mountain DPS; and the Western Great Lakes DPS.
In 2005, in much of the lower 48 states and Mexico, the Gray Wolf had the highest level of protection under the Endangered Species Act (ESA). With the exception of gray wolves in Minnesota and three established experimental populations, all of which were treated as threatened, the gray wolf was listed as endangered. Since then, the government has made several attempts to downlist or completely delist the gray wolf, each of which were challenged by environmental groups. As a result, several gray wolf distinct population segments (DPS) have been established, abolished, downlisted, completely delisted, and later relisted.
This paper will focus on the changes that have occurred from 2005 to the present in each DPS, including three non-essential experimental populations located in Yellowstone, Central Idaho, and the southwestern U.S.; the Northern Rocky Mountain DPS; and the Western Great Lakes DPS. First, it will outline the events that led to the delisting of certain gray wolf population segments, including a discussion regarding the reasons for their separate treatment under the law. Next, each population segment will be examined in detail, including relevant court decisions regarding the gray wolf’s status on the ESA. Finally, the paper concludes with a brief analysis of inconsistencies in gray wolf classification.
II. Historical Background on the Wolf-Human Conflict
Before the 1930s, the gray wolf occupied much of the western half of the U.S. in large numbers. As farmers began to plow and settle on the once open land, the gray wolf’s natural habitat shrunk. Despite a large number of wild animals for the wolf to prey on, including deer and elk, the wolves sometimes went after livestock as a source of food. The western half of the country became more populated, and people living in that part of the country began to view the wolf a predatorial threat to their farms. By 1930, individual hunters and people participating in government-organized wolf hunts had wiped out large portions of the wolf population. Jesse H. Alderman, Crying Wolf: The Unlawful Delisting of Northern Rocky Mountain Gray Wolves from Endangered Species Act Protections , 50 B.C. L. Rev. 1195 (2009) .
By 1973, when Congress passed the ESA, the wolf was found only in Minnesota and Michigan. Populations in other parts of the Midwest were virtually nonexistent. See Wyoming v. Dept. of the Interior , 360 F. Supp. 2d 1214 (D. Wyo. 2005) . In 1978, the Fish and Wildlife Service (FWS) listed the gray wolf as endangered in all lower 48 states except Minnesota where it was listed at threatened and implemented a gray wolf recovery plan that included criteria for later delisting. In 1994, wolves were taken from Canada and reintroduced in certain remote areas of the U.S. to create three non-essential experimental populations (populations of animals not native to an area) in Idaho, Wyoming, and Montana. Because livestock and landowners expressed concern over the potential threat the reintroduced wolves posed to their property, they did not exactly welcome the reintroduced wolves in their home states. Congress included a provision in the ESA that said experimental populations are to be treated as threatened rather than endangered. This is significant because threatened animals can in certain circumstances be subjected to “taking,” where as endangered species cannot. See 16 U.S.C. § 1539(j)(2)(C) . To “take” an animal includes conduct such as harassing, harming, pursuing, hunting, shooting, killing, and trapping. Thus, this provision in the ESA allows farmers in the areas where gray wolves were reintroduced to protect their livestock in the event a wolf goes after one of their animals.
In the last seventeen years since the reintroduction of gray wolves in the mid- and southwest, the number of wolves in those populations have grown substantially. In some areas, gray wolves have exceeded the minimum numerical criteria set forth by the FWS, which led the FWS to down or delist certain population segments, particularly the Northern Rocky Mountain DPS and Western Great Lakes DPS. 74 FR 15123 (2009) . Each time the gray wolf’s status has changed since 2003, environmental groups have challenged the FWS’s decision. There is tension between the government and these environmental groups regarding attempts to delist the wolf due in large part to a complex mesh of land-use conflicts, differing, priorities, and politics. Most recently, this tension was reflected in 2008 when there was a discrepancy in the FWS’s acceptance of Wyoming’s state management plan that would take over the federal government’s role in protecting the gray wolf upon its delisting. Defenders of Wildlife v. Hall , 565 F.Supp.2d 1160 (D. Mont. 2008) . The state management plan Wyoming created in 2003 was rejected by the FWS because it failed to adequately protect existing wolf populations. However, the FWS later accepted the same plan with no new evidence indicating that it would better protect the gray wolf, a decision that was challenged by environmental groups. The debate over delisting these population segments based on criteria issued by the FWS underlies much of this recent controversy.
III. Factors Affecting Downlisting and Delisting of the Gray Wolf
Section 4(a)(1) of the Endangered Species Act lays out five factors that can cause a species to be listed as threatened or endangered:
- the present or threatened destruction, modification, or curtailment of a species’ habitat or range;
- overutilization for commercial, recreational, scientific, or educational purposes;
- disease or predation;
- the inadequacy of existing regulatory mechanisms; and
- other natural or manmade factors affecting its continued existence.
16 USC 1533 § 4(a)(1)(A)-(E) . The FWS must analyze these factors when determining if the downlisting or delisting of a distinct population segment or species is appropriate. A species may also be delisted in conjunction with an analysis of the five factors listed above if the best scientific evidence and commercial data available substantiate that the species is no longer endangered or threatened because of (1) extinction, (2) recovery, or (3) an error in the original data used for the classification of the species. 50 CFR 424 § 1(a). These downlisting factors can be applied to both a species as a whole and specific populations of a listed species in certain geographical locations, referred to as “distinct population segments.”
The concept of a “distinct population segment” refers to population of individual animals that is separate and different from the rest of the species in some way. Such a classification must be made using “sound biological principles” and can have a different listing under the ESA than the rest of the species. Prior to 2003, there were no designated DPS’s for the gray wolf. Creating the Eastern, Western, and Southwestern DPS designations in 2003 allowed the FWS to downlist or completely delist the gray wolf in certain parts of country while leaving protections in place in the rest of the lower 48 states.
Three principles of conservation biology are generally recognized as being necessary to conserve both the biodiversity of an area and to promote the recovery of an endangered species. These are: (1) representation; (2) resiliency; and (3) redundancy. See 68 FR 15804 (2003) . Representation refers to the “need to preserve some of everything,” which at the species level calls for preserving the genetic diversity that remains within a species. Resiliency requires a certain number of individuals within each population that needed to help the species persist over time. Redundancy addresses the need for a sufficient number of populations. Each of these factors are addressed by the FWS in gray wolf recovery plans. Numerical criteria for each DPS is established based largely upon these principles. Numerical criteria refers to the requirement that a minimum number of breeding pairs survive for a certain length of time in a population.
Scientific evidence is normally used to support a FWS decision to list or delist a species rather than providing the sole basis for such a decision. See Andrea Carrillo, Casting Aside the Myth: Why Science is Never the Sole Factor in ESA Delisting , Animal Legal & Historical Center (2008) . There are a lot of other factors the FWS must take into consideration, such as the adequacy of state and tribe management plans already in place and any current threats to a species’ survival. Over the last century, because the gray wolf has no natural predators, the greatest threat to its survival is human interference.
In general, the role of States in protecting endangered and threatened species various according to the status of each individual species. States have no affirmative duty to create and maintain management plans, but the FWS can require states to have management plans in place, which is the case with the gray wolf. If a state management plan is deemed unacceptable, which has occurred multiple times in Wyoming, the FWS can stipulate that it will not issue a rule delisting the gray wolf in certain population segments until an acceptable state management plan is created. See 76 FR 25590-01 (2011) .
IV. Current Gray Wolf Population Segments
Since its initial listing in 1978, the gray wolf’s status on the endangered species list varies from region to region. In much of the lower 48 states and Mexico minus the locations of several DPS’s, non-essential experimental populations, and Minnesota, the gray wolf remains endangered. The listed population segments have been carved out by FWS and listed separately under the ESA as threatened.
The three non-essential experimental populations located in Yellowstone, Central Idaho, and parts of the southwestern United States and Mexico are treated as threatened. Their statuses have remained unchanged since they were created in the 1990s.
The Northern Rocky Mountain DPS, created in a February 2008 Final Rule, includes wolves in Montana, Wyoming, Idaho, Eastern Washington, Eastern Oregon, and North Central Utah. This distinct population segment has been delisted due to recovery.
The Western Great Lakes DPS, created in a March 2007 Final Rule, is currently under review for a proposed delisting. This DPS includes Minnesota, Wisconsin, Michigan, the Eastern half of North and South Dakota, Northern Iowa, Northern Illinois, and Northwest Ohio.
Effective August 2005, the FWS eliminated the Eastern DPS, Western DPS, and Southwestern DPS which was then consolidated with the Mexican Wolf Recovery Program. The Southwestern United States is also native to another species, the red wolf, which is listed separately under ESA.
V. Individual Examinations of Distinct Population Segments From 2005-Present
Since 2005, the FWS has created two gray wolf DPS’s located in the Northern Rocky Mountains and the Western Great Lakes. Gray wolf population numbers in these regions had exceeded the delisting numerical criteria set forth in the gray wolf recovery plan under the ESA, thus the FWS desired to remove federal protections for these populations without delisting the species as a whole. The creation of these population segments created much controversy among environmental groups for varying reasons, so each will be examined individually.
A. Progression of the Northern Rocky Mountain DPS
In February 2008, the FWS issued a final rule that simultaneously established and delisted the Northern Rocky Mountain DPS. 73 F.R. § 10514 (2008) . The Northern Rocky Mountains DPS includes areas of the Midwest that are heavily populated by farmers who did not welcome the presence of wolves who sometimes preyed on their livestock. In the last decade, after the number of gray wolves in this area grew, the FWS issued its 2008 rule to delist wolves in this region.
To support its rule, the FWS stated that wolves in the Northern Rocky Mountains exceeded their recovery goals and all foreseeable threats to the wolf population had been sufficiently reduced or eliminated. Gray wolf recovery goals listed numerical criteria that required a minimum number of breeding pairs in each population to survive for a certain number of years. 73 F.R. § 10514 (2008) .
To ensure some degree of future protection for the gray wolf in the Northern Rocky Mountain DPS, the FWS required state management plans to be implemented in Idaho, Montana, and Wyoming. Idaho’s state management plan was adopted in 2002; Montana’s was adopted in 2003. Wyoming was more problematic, however, and had to revise their plan before it was acceptable. The 2008 Final Rule stipulated that if Wyoming’s revised wolf management plan was not in full force and effect within 20 days of the issuance of the rule, then the Final Rule would be withdrawn and replaced with a rule that would keep federal protections for wolves in Wyoming intact.
Several wildlife organizations challenged the delisting in a federal district court in Montana. Defenders of Wildlife v. Hall , 565 F.Supp.2d 1160 (D. Mont. 2008) . While the case was pending, the plaintiff environmental groups filed for a preliminary injunction to reinstate ESA protections for the wolf until the case was resolved. In Defenders of Wildlife v. Hall , the judge granted the preliminary injunction, in part by pointing out inconsistencies in the FWS’s decision to accept Wyoming’s 2007 state management plan. Wyoming’s 2007 management plan contained provisions that were deemed unacceptable by the FWS in 2003, and no other mitigating factors concerning the wolf populations of Wyoming existed to account for this discrepancy. One such provision was the classification of wolves as predatorial animals, with 10 percent of the wolf population located in a trophy game area. In addition, the Wyoming plan did not commit the state to managing a minimum of 15 breeding pairs, a number the FWS previously deemed necessary for the plan to be acceptable. Defenders of Wildlife v. Hall , 565 F.Supp.2d 1160 (D. Mont. 2008) .
In response to the court ruling regarding Wyoming’s state management plan, the FWS issued asked the court to vacate the February 2008 Final Rule and remand it back down to the Service. See 74 F.R. § 15123 (2008) . The Court did so in September 2008, citing ambiguities in how the plain text of the ESA instructed the FWS to consider certain factors in its decision to delist a DPS. Following this ruling, wolves in the Northern Rocky Mountain DPS were once again protected under the ESA as a threatened species.
About seven months later, the FWS issued another Final Rule in April 2009 that once again delisted the Northern Rocky Mountain DPS. 74 FR 15123 (2009) . As a result of the Court’s concerns regarding the FWS’s acceptance of Wyoming’s previously unacceptable state management plan, the FWS also declared wolves in Wyoming to be in danger of extinction due to inadequate existing regulatory mechanisms. The FWS relisted the gray wolf in Wyoming as a non-essential experimental population listed as “threatened” under the ESA.
Not surprisingly, the same environmental and animal welfare groups that had previously filed suit to reinstate gray wolf protections filed yet again in 2010. Defenders of Wildlife v. Salazar , 2010 WL 3084194 (D. Mont. 2010) . They asked a federal district court in Montana to vacate the FWS’s April 2009 Final Rule and relist the gray wolf in all parts of the Northern Rocky Mountain DPS. The court once again ruled in their favor and found that the FWS violated the ESA when it delisted only a segment of a species or DPS. The long-standing history of the ESA supported the conclusion that a population segment cannot be subdivided, which is what the FWS did when it delisted wolves in Idaho and Montana but not Wyoming.
After the court’s decision in Defenders of Wildlife v. Salazar , Congress acted to remove the Northern Rocky Mountain DPS from the endangered species list in Montana and Idaho in a rider to the federal government’s 2011 Budget. FY 2011 Budget , 290 § 1713 (.pdf - 798.11 KB). This is an unprecedented move in which Congress acted to remove a species from protection under the ESA without going through the FWS. The FWS followed suit by issuing a Final Rule in May 2011 after Congress passed its budget in order to implement the gray wolf delisting. Gray wolves in Wyoming will remain protected as threatened while the FWS works with the state to develop an acceptable wolf management plan. In addition, the rider states that this removal is not subject to judicial review. Undoubtedly, the environmental groups that have challenged the gray wolf’s delisting several times in the last decade will find a way to challenge this move by Congress as well. For now, though, the gray wolf will be under the protection of the state management plans in Idaho and Montana.
B. Progression of the Western Great Lakes DPS
The Western Great Lakes DPS was established in a February 2007 Final Rule by the FWS and included Michigan, Wisconsin, Minnesota, parts of the Dakotas, and northern portions of Iowa, Illinois, Indiana, and Ohio. 74 FR 15070 (2009) . The Midwestern portion of the country affected by this rule is comprised largely of rural areas. Concerned about the safety of their livestock, farmers worried about the threat wolves posed to their livelihood. For that reason, many farmers expressed a desire to be able to control the population themselves in order to better protect their livestock.
Effective March 12, 2007, the FWS’s Final Rule removed the Western Great Lakes DPS from the Endangered Species List. All special regulations for Gray Wolves in Minnesota were removed, as well as the then-listed critical habitats in Minnesota and Michigan. The FWS reasoned that the gray wolf no longer needed federal protection because all threats to the continued survival of the species had been sufficiently reduced or eliminated. Population numbers had increased significantly, exceeding the numerical recovery criteria established in the gray wolf recovery plan. According to the Final Rule, State wolf management plans in place were sufficient to provide adequate protection to the gray wolf.
Delisting criteria outlined in both the 1978 Recovery Plan and 1992 Revised Recovery Plan require the continued maintenance of the gray wolf population in Minnesota and the establishment of at least one gray wolf population outside of Minnesota and Isle Royale, Michigan. In 2007, the FWS determined that both of these criteria had been met. Minnesota’s state gray wolf management plan would ensure the continued survival of gray wolves in Minnesota, and a growing population of wolves in Michigan and Wisconsin satisfied the second criterion.
Despite the FWS’s 2007 determination, the gray wolf’s delisting in the Western Great Lakes was short-lived. In September 2008, a United States District Court Judge in Washington D.C. vacated the FWS’s 2007 Final Rule and remanded it back to the FWS so that it could resolve some ambiguous language in the act. Humane Society of the United States v. Kempthorne , 579 F.Supp.2d 7 (D.D.C. 2008) . Protection for the Gray Wolf in the Western Great Lakes was immediately reinstated, and the status of the DPS was once again listed as threatened in Minnesota and endangered in the rest of the DPS. Officially and in accordance with the Court, the FWS issued a Final Rule in December 2008 reinstating protection for the gray wolf. See 73 FR 75356 (2008) .
Four months later, in April 2009, the FWS issued a Final Rule to once again delist the Western Great Lakes DPS and address the concerns of the Court regarding ambiguous language in the ESA. See 74 FR 15070 (2009) . This Rule was only in effect for five months. In September 2009, a Court Order and Settlement Agreement restored protection for the gray wolf. These protections remained in effect for over a year and a half. More recently, in May 2011, the FWS announced a proposal to delist gray wolves in the Western Great Lakes DPS. This proposal is still pending and if passed could lead to future challenges in court by environmental groups. The FWS expects to be ready to issue its Final Rule in December 2011.
VI. Inconsistencies in Gray Wolf Classification
Many critics of the Gray Wolf’s delisting, namely animal rights and environmental groups, argue that the FWS is driven by politics rather than biology in making its decisions. They would like to see the wolf remain protected until its numbers are close to what they once were. There is also a States’ rights issue playing out in the courts, which is most exemplified in Wyoming. Local farmers and politicians want to be able to control the wolf populations themselves while simultaneously protecting their livestock without the interference of the federal government. This is a problem, however, because humans have consistently proven to be the greatest threat to the survival of the species. It was largely because of government-sponsored wolf hunts that the species was nearly eradicated at the beginning of the twentieth century. See Edward A. Fitzgerald, Dysfunctional Downlisting Defeated: Defenders of Wildlife v. Secretary, U.S. Department of the Interior , 34 B.C. Envtl. Aff. L. Rev. 37 (2007) . Supporters of gray wolf ESA protections argue that if farmers and hunters are once again allowed to shoot wolves at will, the species will again face extinction.
It is true that the FWS must take into consideration more than merely the number of gray wolves alive in a population before deciding to downlist or delist a gray wolf DPS. Environmentalists worry, however, that mere numbers are not the only concern when it comes to protecting the gray wolf. There is a common perception that wolves are predatorial, unruly animals that go after humans and their livestock regularly, even in areas where the wolf’s natural prey is abundant. Some argue that in order for the gray wolf to have the opportunity to thrive, human perception and human attitudes toward the wolf need to change. In addition, there is some contention among environmentalists regarding the science behind the numerical criteria listed in the gray wolf criteria plan. Proponents of wolf protection argue that the minimum population numbers required for downlisting are not high enough to ensure that the species will survive once it is completely delisted and removed from the ESA. See Andrea Carrillo, Casting Aside the Myth: Why Science is Never the Sole Factor in ESA Delisting , Animal Legal & Historical Center (2008) .
The gray wolf’s status on the Endangered Species List is currently in a state of flux. In much of the United States, it is a protected endangered species under the ESA. However, due to conflicting interests between farmers, certain states, environmental groups, and the FWS, there are areas in which the gray wolf has been downlisted and others where the gray wolf has been completely delisted. Ultimately, farmers and ranchers contend that they need to be able to protect their livestock in order to support themselves. When wolves go after sheep, horses, and cows, they pose a threat to the farmers’ livelihood. Many state politicians in the Midwest fight to support their farmers, which often translates into an increased desire to support the gray wolf’s delisting.
On the other side of the equation are the FWS’s duties under ESA to protect species that it deems to be in danger of extinction and the desires of environmental groups to keep the gray wolf protected in order to allow the animal to thrive as it once did. Even though in certain areas the number of wolves has exceeded the numerical criteria set forth in its recovery plan, there remains an unresolved issue as to the threat humans continue to pose on the gray wolf’s survival. The FWS cannot predict how farmers and hunters, particularly in the Northern Rocky Mountains and Western Great Lakes, will react if restrictions on their ability to take wolves are lifted. Thus it seems the political and legal battle over how to protect the gray wolf will not be ending anytime soon.