Judge wonders why Wyoming was left out of the delisting decision.
It looks like Molloy’s decision will center greatly on the decision of the USFWS to leave out Wyoming. About that decision:
“I understand the practical argument, I understand the political argument. Those two things are very, very clear. But what I don’t understand is the legal argument. That’s not very clear,” the judge said.
Molloy: Why protect wolves in Wyoming, but not Montana and Idaho?.
By ROB CHANEY of the Missoulian
Judge hears arguments in federal wolf case
By MATT VOLZ (AP)
Comments
Would someone who was there PUH-LEZE ! spell out the Five Questions that Judge Molloy insisted be answered by the pleaders ?…..
1.
2.
3.
4.
5.
Yeah, the articles don’t really say what the questions were.
“There’s no harm to the species by leaving them listed in Wyoming, and there’s benefit to delisting them in Montana and Idaho,” Lane told Molloy. “It’s like a relay race. The states are the stronger runners, and its time for them to take the baton.”
What in the world is he talking about?
I had the same question – about the analogy. The part about leaving them listed in WY protects them at a higher level than under state management. So where is the issue relative to partial delisting based on political boundaries. Hell, all affected states are making their own plans anyway, reflecting local values, integrating wolves into their wildlife management administrative structures, including the decision to hunt or not hunt when populations get to a certain threshold. It makes absolutely no sense to me.
Can anyone offer logic to show how keeping wolves listed in WY only is to their detriment there?
Check out this photo from the link(upper left):
http://missoulian.com/news/state-and-regional/article_42b40808-7895-11df-8ae3-001cc4c03286.html
One of the signs says “come on! let us KILL the wolves”. Creepy stuff.
It’s people like that who keep wolves listed.
Pro,
I have disagree, people like this only add fluff to the argument, if the Judge does his job, it will be based on law and science, this is simply nothing but a distraction to those of us who wait for a decision…and currently wolves are not listed in two of the three NRM states
I disagree they add fluff. There will likely be people who are pro-wolf who will point to that as evidence that wolves need to stay listed. Hopefully the judge will ignore all of the signs but that does help fuel the fire for lawsuits.
Well Pro,
Then you have experienced different kinds of courts than I have in my work..
What’s the rationale for the DPS designation?
DPS policy was designed to protect (i.e. list) “distinct populations” of a species that was otherwise doing well. One problem is that FWS never envisioned a scenario whereby a DPS would be used to delist a species that is surrounded by an area where they are listed as endangered; essentially, this use inverts the policy’s purpose. A second issue is that previous court rulings have suggested that FWS should not be able to use political boundaries to draw DPS lines (there is nothing “distinct” about wolves in Wyoming as opposed to those in Idaho). Using political boundaries as DPS boundaries seems to conflict with FWS’ own definition of a “distinct population”.
There are other issues as well, but they are more nuanced.
JB,
Points of clarification on DPS as it is presented in the NRM case.
The first issue:
++One problem is that FWS never envisioned a scenario whereby a DPS would be used to delist a species that is surrounded by an area where they are listed as endangered; essentially, this use inverts the policy’s purpose.++
Did FWS envisioned it. The question is whether Congress wanted to prevent FWS from using the tool in this manner, in 1978 when creating the legislation introducing the DPS concept. There is little to no legislative history on that point, if I understand correctly. FWS, in fact, has used this approach successfully in several instances in the past. I am only aware of one legal decision with an adverse finding regarding its application in this manner – and it has to do with wolves. It was when they attempted this approach with the Great Lakes Wolves in 2007 that HSUS as lead plaintiff, in a case pending in US District Court in Washington DC, raised the issue that the DPS concept was being used improperly – concluding Congress was “ambiguous” on this point, and allowed FWS to provide additional background and justification for its action, which it did in the NRM delisting rule of 2009. In the DC case, FWS was attempting to delist (at the request of MN, MI and WI), the very healthy numbers and genetic diversity of the Great Lakes Wolves. That delisting is still in limbo.
The second issue:
++ A second issue is that previous court rulings have suggested that FWS should not be able to use political boundaries to draw DPS lines (there is nothing “distinct” about wolves in Wyoming as opposed to those in Idaho).++
My apologies if I am incorrect on this point, but, I am not familier with decisions which reach this conclusion. I think this is the first case to raise it, and in an interesting way, because of WY’s unapproved plan while being a major player in the NRM DPS.
However, political boundaries (instead of the more scientifically acceptable ecoysystem boundaries) in general seem to be a practical way of allowing states (with wildlife/game management responsibilties envisoned in the NA conservation model) to administer a particular species, even in light of the fact that the animals, whatever they might be, themselves do not know the difference. Without the political boundary distinction, administration by states becomes infinitely more complex, as the list of states which have wolves or will eventually get them will undoubtedly attest. The probem becomes a bit more complex when states like WY want to be jerks.
The state boundary (and state planning and management issue) continually and inconveniently presents itself for the Great Lakes, NRM (ID, WY, MT and portions of WA, OR, UT), Mexican Wolf (NM, AZ, and potentially portions of OK, CO, TX), New England (as evidenced in a 6/10/10 finding of insufficient information in a petition to define a gray wolf DPS for the states of Massachusetts, New York, Vermont, New Hampshire, and Maine).
WM:
Regarding the first issue:
You are correct regarding the lack of legislative history; however, it is not merely a question of Congressional intent. FWS/NMFS have an established DPS policy. To the extent that their decision in this case conflicts with their own policy, the court can hold that their decision is arbitrary and capricious. In other words, an agency can’t establish a policy and then simply ignore that policy when it is convenient.
FWS set up three general criteria for a population to be considered a DPS: The DPS policy lists three criteria: (1) discreteness of the species’ population segment in relation to the remainder of the species which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment’s conservation status (whether the DPS is threatened or endangered).
In this particular case, there is nothing “discrete” about Wyoming wolves; that is, the Wyoming wolf population is not “markedly different” from wolves in the surrounding states.
From FWS’ DPS policy:
“Discreteness: A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions:
1. It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
2. It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.”
*To be honest, I can’t remember the case that established that political boundaries were not necessarily appropriate DPS boundaries, but it is cited and discussed in the Final Rule that delisted wolves in the Great Lakes.
JB,
++*To be honest, I can’t remember the case that established that political boundaries were not necessarily appropriate DPS boundaries, but it is cited and discussed in the Final Rule that delisted wolves in the Great Lakes.++
I spent a little time this evening reviewing the 4/2/09 and the 2/8/07 Federal Register docs, publishing the respective Final Rules for the Great Lakes wolves and couldn’t seem to locate the case to which you refer. Not surpising since those documents are long and without an index. If it was a sticky issue I would have thought it would receive considerable discussion in both the GLR and NRM rules. If you come across it again, I would appreciate your directing me to it. Thanks,
WM:
The confusion is my fault. It was not a previous court decision but, FWS’ interpretation of their own DPS policy, that is the issue with state boundaries. I believe there is some discussion of this in each of the Final Rules, but I found it quickly in the 2003 Final Rule:
“Although the Vertebrate Population Policy does not allow State or other intra-national governmental boundaries to be used in determining the discreteness of a potential DPS, a State boundary may be used as a boundary of convenience in order to clearly identify the geographic area included within a DPS designation when the State boundary incidentally separates two DPSs that are judged to be discrete on other grounds.”
One of my questions is what becomes of the Wyoming population if Molloy allows the delisting to take place? As DPS policy was written, it is clear that FWS envisioned using this policy to quickly list a distinct population that was doing poorly, despite the fact that the surrounding population was thriving. In the case of the NRM wolves, there is no surrounding population. However, Wyoming is an adjacent population. The problem, again, is that Wyoming wolves are not “discrete” or “distinct” by DPS policy standards. So if you go ahead and let Idaho and Montana delist as part of the NRM DPS, what is the status of Wyoming wolves? That is, can they be part of the delisted DPS and have a different listing status?
PR,
The DPS or Distinct Population Segment definition, and whether FWS can list and delist the NRM wolves on this basis (including a portion of the DPS) is at the very core of the law suit. It is kind of complex and the best way of understanding how it came about is to actually read the delisting rule, which can be found here.
http://www.fws.gov/mountain-prairie/species/mammals/wolf/74FR15123.pdf
In fact, some who are extremely critical of FWS in its efforts to recover and delist wolves (advocates and anti-wolfers alike) would do well to actually read the document to understand what has transpired over the last fifteen years.