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Dodging the issues in wolf delisting lawsuit

With each side accusing the other of “dodging” certain issues, on Friday a federal judge in California heard oral arguments regarding the U.S. Fish & Wildlife Service’s decision last year to remove federal protections for gray wolves in Minnesota and portions of 44 states. The one-hour hearing was delayed while one of the attorneys in the multi-party lawsuit attempted to get on the already at capacity viral hearing conducted via Zoom.


Earthjustice attorney Kristen Boyles, representing wolf activist organizations, repeatedly accused FWS of making a statutory dodge around the 1978 listing of all wolves in the Lower 48 as a protected species, which she said hasn’t been revoked. “The agency can’t use this statutory backdoor” to delisting wolves throughout the United States, and claimed the agency was engaging in a prohibited “statutory dodge” with its actions. “The impermissible delisting is the same,” she said.


FWS attorney Michael Eitel called those claims “ungrounded” and said, “There was not a statutory dodge here, your honor.” He said that the plaintiffs continued focus on the 1978 listing ignores all the listing changes made since that time concerning wolves, including changes to the Rocky Mountain and Mexican wolf populations, as well as the agency’s Congressionally mandated routine reviews of the status of listed species.


The earlier listing of Minnesota wolf population as threatened, with all the remaining wolves in the Lower 48 States as endangered, has been changed over time, Eitel argued, noting that since courts have held that listing decisions can’t be based entirely on state boundaries, and the Minnesota wolf population eventually grew to become the Western Great Lakes wolf population which FWS treats as a distinct population segment under the ESA, the 1978 listing of Minnesota wolves no longer reflects an appropriate “species” for listing under the act. The same holds true for wolf status in 44 other states, according to Eitel. The 1978 listing to protect wolves wherever they occurred "erroneously included areas outside the species' historical range and was misread by some members of the public as an expression of a more expansive gray wolf recovery effort not required by the Act and never intended by the Service,” federal attorneys argued. The 2020 rule removing the separate listing of gray wolves throughout the Lower 48 states (with the exception of Mexican wolves) is at the heart of the court arguments.


Eitel said his agency rationally conducted the familiar two-phase inquiry it performs in every listing and delisting decision under the Endangered Species Act. He noted that FWS first concluded that neither listed wolf entity (wolves in Minnesota and wolves in portions of 44 States) constituted a protectable “species” as Congress defined the term, and so FWS could not lawfully protect them as either a threatened or endangered species. Eitel said that the plaintiffs didn't argue that point, essentially dodging the issue, while arguing that the court should too.


Eitel argued that FWS evaluated whether the two listed entities, as well as other configurations of wolves, might merit protection as threatened or endangered species and found that they did not.


In written briefs before the court, the federal defendants wrote: "Plaintiffs pair their disregard for the facts with a refusal to explain why two robust metapopulations comprised of thousands of wolves that are biologically connected to tens of thousands of wolves in Canada cannot support a determination that wolves in the lower 48 States are recovered—i.e., that they are not in danger of extinction now or in the foreseeable future.”


Senior Judge Jeffrey S. White kept the arguments on tract, asking attorneys to address a narrow set of questions for his consideration on summary judgment motions in the case. At the outset of the argument, White cautioned the parties that his questions weren’t an indication of his leanings in any direction at this point.


The first portion of the oral argument revolved around the question of whether the ESA imposes two analytically distinct phases (listing and delisting), to which both parties agreed it does, but Boyle added that it "wasn’t as important of a question as FWS thinks its is.”


The final argument centered on the proper remedy should the court decide that FWS was incorrect on any part of its delisting action. While the wolf advocates argued that court should reinstate federal protection for wolves throughout the Lower 48 States while the defects in the FWS rulemaking are remanded back to FWS, federal attorneys argued that the court should remand the rulemaking back to the agency for reconsideration. Such reconsideration would be appropriate, since FWS "is already undertaking a status review of the wolves that are the focus of much of Plaintiffs’ argument—those in the Western U.S.”


In its written brief, FWS attorneys pointed out that wolf advocates seek a reinstatement of "federal protections for wolves during remand,” without specifying what that means or how it could be accomplished. FWS pointed out, "There is no single rule affording ESA protections for gray wolves throughout the lower 48 States. In fact, when the Service issued the November 2020 rule, wolves were only listed in Minnesota and 44 States."

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