Did a Campaign of Fear and Intimidation Lead to the Gray Wolf’s Removal from the Endangered Species List?
There have been a number of analyses of the recent congressional wolf delisting in the Northern Rocky Mountains. One recent piece places much of the blame on “environmentalists.” It is available by subscription only the the High Country News, How the gray wolf lost its endangered status — and how enviros helped. The author, Hal Herring, writes that environmentalists filed one lawsuit too many. I find this doubtful except that the suit did alter the details of how the delisting took place. The anti-wolf forces were well in place in decade or more ago, making most of the same arguments they make today, including the supposed overall decline of elk, and the endless prediction that wolves will soon kill little children. It was just a matter of time until the three hostile states gained control.
I don’t think Herring is as hard on environmentalists as the story’s headline implies. Herring does correctly identify “the horde of [anti-wolf] Western politicians.” but he does not connect that fact to the use of lawsuits as the only feasible way to defend wolves from a very premature attack on them. The lawsuits were the excuse that Senator Jon Tester and others used to justify the congressional rider to the 2011 budget bill that delisted the wolf, but Tester believed he needed something like the action he took so to defeat his Republican 2012 rival Denny Rehberg, keeping his seat and maybe the Democratic majority in the U.S. Senate.
Herring is right when he wrote, “As a horde of Western politicians harnessed the anti-wolf fury, determined to get Congress to intervene, 10 of the groups involved in the fatal lawsuit panicked. Suddenly, they sought to compromise, offering a “settlement” that resembled the partial delisting they had previously sued against. There was no chance that Judge Molloy would accept the settlement . . . .” Herring is also probably right that the initial state wolf hunts did not damage the wolves as much as some environmental groups predicted. My view is it was the second, third, and fourth hunts that worried them more.
Cry, Wolf in the Earth Island Journal by James William Gibson tracks closer to my experience in the trenches. Gibson places the blame on right wing extremists stirring up hunters in the states with their wild tales of likely wolf attacks on people, supposed destruction of game herds, fear of wolf borne spread of disease, and intense anti-federal rhetoric. The national pro wolf groups did not have many people on the ground, leaving the grassroots wolf supporters more open to intimidation by the far right wingers. Gibson does tie the rise of the right wing wolf extremists into the rise of general right-wing hatred of Barrick Obama. I think he is right, and this has been underreported. The real crazy stuff, such as the wolves were a U.N. plot to steal land was present from the start, but it was very marginal until the summer of 2010 when the tea party arose and pretty much took over the Republican Party, thus mainstreaming ideas that had been on far shores of politics for the last century.
Supporters of wolf restoration played the game about as well as they could, given their modest resources. They could not have predicted or influenced the more general political trend that brought the far right to power in the region and nationally. The unexpected disinterest and weakness of President Obama pretty much left them without any politically powerful friends,expect maybe the courts, which they used.
On the bright side, wolves did spread and multiply quickly, a sure indication that they fit into the present-day ecosystem well. Their present number is quite a bit higher than the early proponents of wolf restoration hoped for, although it is the long term population that counts, not a single peak in the vastness of time. It is good fortune that the huge size and ruggedness of Idaho’s backcountry protects them. I think Jon Marvel is right as he stated (in Herring’s quote), “We think that Montana will establish (somewhat) moderate (wolf-hunting) seasons, and that Idaho may try to eliminate wolves in some specific areas, but that, absent the use of poison baits, wolves will survive in the backcountry even with continuous efforts to eliminate them.”
There is going to be a lot more anti-wolf talk between now and 2012 because Republicans want Rehberg in the Senate. They think Tester is vulnerable on wolves. With a majority in the U.S. Senate the strange new Republican Party might well end the hated Medicare, Social Security, minimum wage, unions, consumer safety laws, environmental protection and much more. “Crying wolf” for them could at long last end in their successful hunting down, killing and feasting on the grim remains of America’s middle class society.
Comments
I wholly agree with Ralph here.
And will echo something he states. As one of maybe only 3-4 pro-wolf folks willing to say so publically in northwest Wyoming, we are definitely outnumbered about 500-to-1 by the pitchfork and torch crowd…
And the pitchfork and torch crowd wants to make sure their idea of freedom is what exists. Do the people in Idaho, Wyoming, and Montana think they are free with these conservative loons running the wildlife agencies, governor’s offices and legislatures? Look at how they are trying to hijack our government on a national level! It is the wolves that are responsible when a person fails to stop a daschund from running after 3 or 4 wolves?
“Do the people in Idaho, Wyoming, and Montana think they are free with these conservative loons running the wildlife agencies, governor’s offices and legislatures?”
What’s your point?
I don’t know Dude the bagman, maybe some people like the denny rehberg types telling people what wildlife you can and can’t have.
Do you think you’re immune to that kind of craziness just because you live somewhere else? There are plenty of examples of nonsensical fear-mongering politics at work in other states (and in the country as a whole).
Dealing with laws you don’t particularly care for is part of the price of living in a democracy. I live here because I prefer the quiet open spaces here to the noise and crowds of the city – not for the prevailing politics. In my experience, people in cities are just as close-minded as they are in more rural places – just more segregated into like-minded pods with a bias that tends to be more liberal on average.
Some of us in those states are in the minority and can’t do much to change the grandstanding kooks who are elected. There’s no reason to rub our noses in it. Your condescension does not make you look better in comparison.
p.s. I honestly have no gauge of folks herebaouts to Cody WY who are in the No Opinion / Dont Really Care category about wolves. The anti-wolfeers are what I meant when I facetiously said ‘pitchfork and torches’ crowd, but does not accurately assess the entirety of the population.
The P & T’ers are consolidated around the Sportsmen for Fish and Wildlife nucleus , which is substantive , We seem to have a “Pet Species Fundraising Banquet” every weekend all winter long, and Rocky Mountain Elk Foundation almost moved their HQ here to Cody , as did Boone & Crockett considered once upon a time. The general hunting/outfitting and legacy ranching interests are also big in numbers , especially the gun shop crowd ( innumerable…we are a bountiful orchard of Second Amendment types around here, which is fine). But they all have been co-opted to be largely wolf haters all, without really knowing why when you ask them to be specific about their beliefs.
It’s really tough to be pro-wolf in Wyoming. It has cost me a great deal of my business , for one thing. The prejudice and backstabbing goes beyond that one issue. But I’m not pro-wolf ( and pro-grizz , pro-cougar and of course pro-coyote ) for me. I actually was paying attention in my junior high science classes and high school civics classes over 40 years ago, pre-ESA. Many of those anti-wolfers would do well to audit their kid’s science classes. I hope they still teach as such…
CodyCoyote, One odd thing I’ve noticed over and over again in the Cody area is that people who have moved here not too long ago–say within the last 5-7 years–and maybe even from the city/suburbs, soon take up this anti-wolf cause with lots of energy. Somehow I think its to be ‘accepted’ or ‘in’. These people just puppet the lingo; you know like Canadian wolf, killing tons of cattle, etc. It really is quite strange to me as I’ve seen this with people even from NYC.
It seems to me that the reason to retire or move here is for nature, the outdoors. In a way I almost understand people who have grown up here with a kind of way of life they see changing and disappearing and they become afraid. That is much more understandable than a person who moves here from Jersey and becomes anti-wolf, anti-bear, pro-oil, etc.
Maybe they move in for the like-minded folks? I’ve noticed that a lot of the loudest voices talking up the states rights and “rural heritage” type issues are often refugees from more populous states.
I used to joke that I didn’t really mind the Aryan Nations being in Idaho because they kept people from moving in and weren’t really that much of a presence outside of the media. Now I think maybe Idaho’s reputation just attracted the wrong kind of Californian.
Jim T,
It does explain them. They, themselves, described their move to Idaho (and NW Montana) as a move to establish the great White homeland.
I am using the general idea to explain a broader migration pattern, however; and it is not explicitly racist.
Leslie and Dude,
I think this is important, and it has been an idea that I have had too. It seems to me that many of the anti-wolf people and others who seem not to know very much about our great outdoor heritage turn out to be newcomers who pretend, and take on the worst “Old West” attitudes as “protective coloration” so they won’t be called a “Californian” or whatever.
They probably read too many of those tired news stories about rancher so-and-so and his supposed 4 generations on the land, and decided they can fake it. Of course, not all are newcomers, but the real Idaho extremists outside of a few perennial hot spots have migrated in. Idaho does not have much ethnic diversity, except for a rapidly growing Hispanic population. This lack of differences can attract people who are very ethnocentric (to use the sociological term).
Idaho’s population has grown a lot in the last 20 years.
For many years Idaho was a poor, poor state. During the Great Depression and for at least a generation-and-a-half after, it was a project of the federal government. Subsidies of all kinds kept the economy going. Then in the late 60s through the 70s, there was a sudden economic improvement. New people moved in and they were green (conservationists). The state begin to gain population, but that stalled out during the big Reagan recession of the early 1980s, which lasted much longer in Idaho than nationwide. ‘When the state began to grow again many of the newcomers were rich, conservatives. Others, I think, were often brown, “white flight” refugees with very right wing attitudes.
With the current depression/recession Idaho is once again becoming a poor state with little opportunity for individual or community improvement, and the right-wingers lack effective ideas how to improve the situation. The livestock powers-that-be can’t think much beyond agribusiness and extractive industry. Because they can’t generate prosperity, anti-conservation and other kinds of scapegoating and cultural hostility is their way of diverting attention.
If anyone remembers killer Claude Dallas, he was not from Idaho. He migrated in, his head full of myths from Hollywood Westerns and novels. He was very unhappy to find it was not the wild west and that there were rules for hunting and conservation officers that enforced them.
Ralph, isn’t your point about newcomers also applicable to the troublesome period with the White Supremicists up near Hayden Lake?
I do not have access to Herring’s article. However, one does have to question whether the tipping point was the filing of one too many law suits, OR whether it was the choice of plaintiffs to include in their legal complaint the pivotal DPS management issue which prevented two states from implementing their federally approved management plans (ID and MT) while WY held out. There were many other claims in the suit which focused on the science of recovery that did not get aired.
When Judge Molloy ruled that NRM wolves could not be delisted in part of the DPS, while remaining listed in WY, the legal argument left the science of wolf recovery, and whether wolves were actually endangered in the NRM DPS (as defined by FWS)under the ESA. It moved ever further into the arena of federal state cooperation as envisioned under the law, it underscored a trail of broken promises and added yet one more to the growing list.
The question in my mind is whether the lawyers for the plaintiffs emphasized this risk when they considered strategy whether to use this technical legal argument, or whether the clients were told of the risks, AND chose to proceed anyway. The public will probably never know whether and how those discussions were held behind closed doors.
Therein lies the blame in my view. If Judge Molloy did not have to decide the DPS issue first out of the box (as judicial economy generally demands a judge do), and the case had proceeded to the meaty parts of the other claims in the complaint this case would still be about the science of recovery. For example, “Is a a connected metapopulation with minimum of 300 wolves and 30 breeding pairs enough?” “Is there connectivity?” “Are the state plans adequate to meet the objectives of the ESA?”
I submit an alternate path was possible, with Judge Molloy ruling on these issues of science, and maybe even overseeing a long term Consent Decree that kept heat on ID and MT not to do stupid things, while FWS kept working on WY to participate in good faith.
I think (yes,with 20/20 hindsight, but I predicted this would happen long before it did, and my comments on this forum bear that out) opportunities were squandered by the environmental groups who filed these suits, focusing on the hot button issues. And, in the end, even they could not agree among themselves how to proceed when the political realities set in, as some tried to distance themselves at the last minute from the inevitable, while others wanted to play out the last legal card with the appeal.
WM: Just curious–do you really believe the result would have been different had wildlife advocates won the case on an issue of science/recovery as opposed to a “technical flaw” in the ESA?
Personally, I would have liked to have seen a decision on the science of recovery, as such as decision would have added to the relatively sparse case history and (potentially) added clarity regarding what is required for recovery. However, I seriously doubt that Molloy, who recently ruled that the regulatory mechanisms protecting grizzly bears were inadequate to justify delisting, would have seen things differently in the case of wolves (which face far greater “regulatory threats”).
I wish he had taken up one or more of the other claims for relief in the first delisting lawsuit. The claim he took up really was quite technical and tangential to the Act, IMO.
I think he was trying to not be a judicial activist — to decide the case on narrow grounds. It didn’t work so well.
by the way Ralph, Claude is back out there, somewhere, freed from prison….
JB,
I would like to think Judge Molloy could have done a lot with just the science of recovery before him. A creative and forceful federal judge has the latitude to do alot – and act in the role of a problem solver, and not just tell a federal agency to go back to the drawing board.
Along with the science, the judge could have factored in some of the cultural, economic and political sideboards, which the ESA is not supposed to address, but in fact does, by the virtue of the fact that states are given important and substantial formal cooperative roles in ESA implemenation. That aspect is lost on a lot of ESA purists who do not understand its breadth and depth.
There are similarities (and also significant differences)between the grizzly bear and wolf recoveries, so these parallel paths seem important, IMO. It would seem logical that the judge would approach the species connectivity-genetic diversity/signficant range issues with some degree of consistency. But wolves and griz are substantially different in their habitat needs, fecundity, severity of human-species conflicts, the pine nut food issue, and then there is that pesky but important 10(j) aspect for the wolves.
He may not be troubled as much in the wolf recovery by enforceble regulatory standards (a topic you and I have discussed before), and may be inclined to accept the detailed plans already in place for ID and MT (and find a way to work with WY and its unapproved plan, with wolves still ESA protected there under the 2009 rule), if there is a means to keep the states on task and not cheat, in the short or long term. A consent decree with court monitoring could help with that, if applicable to this situation. Again, my hope was for Molloy to be a problem – solver, to aid in implementation, and not just punt the case back over the fence. He showed signs of this by letting the hunt go forward in 2009.
I expect parties to the wolf litigation have poured over Molloy’s decision on the griz relisting, to find elements to fit their respective positions. Each will likely find alot to work with,”significant range” being one. Molloy may have been thinking about the upcoming wolf decisions as he wrote those words in the griz decison, but then, maybe not, which could hamper him if he chose to go a different direction with his reasoning on wolf delisting. There is even some 9th Circuit language to work with.
An important aspect that seems to trouble Molloy and other trial court judges dealing with delisting rules is not so much that FWS reached a particular conclusion (afterall administrative agency rules are subject to a pretty relaxed standard), but the apparent lack of explanation and detail justifying the conclusion reached to support a final rule. One would think FWS would learn from this after so many spankings. Anticipation of legal arguments by opposing interests and ultimately judicial interpretations is an intuitive art, but it ain’t rocket science, especially when judges keep telling you what is needed to avoid a bad ruling – geez.
WM: I have spent some time looking at the griz ruling, and Molloy’s logic is pretty clear: MOUs and the stated intent of agencies are NOT adequate regulatory mechanisms where the ESA is concerned. Add to this (a) the fact that Idaho’s official position (as expressed by the state legislature) is that wolves should be removed by any means necessary and (b) the 9th circuit’s prior ruling on the SPOIR issue, and I simply cannot see a decision that would have allowed delisting to go forward (as pragmatic as one may have been). Even with wolves delisted, far-right western politicians (see Bob’s post on Rehberg) are still trying to ride the wolf issue into office on hyperbolas claims of injustice.
I’m not so sure the griz case was decided correctly. It twisted the statutory language slightly and relied on factually distinguishable precedents. The result was a decision that required more certainty for delisting than the Act requires.
I think the outcome was correct from a policy standpoint, but I don’t think the law was applied correctly.
You may be right. However, the fact remains that the same man would have decided the case and there is considerably more reason to think the regulatory mechanisms protecting wolves are inadequate; moreover, the SPOIR issue still lingers and Montana, of course, is in the 9th circuit–where this is precedent favorable to plaintiffs. I simply don’t see a scenario (that’s likely) where the end result would have been any different?
Sorry, I meant to write: “…where the precedent is favorable to plaintiffs.”
True. I don’t see the wolf issue being decided otherwise either.
JB,
I should have prefaced my earlier comment by saying I also spent a little time reading Molloy’s griz opinion, if that was not clear. His finding on the lack of regulatory standards for griz protection was puzzling to me. I do not think the Act calls for what he seems to find missing, and I am not sure quite what he specifically wanted in the way of regulatory protections. It looks like you have given the matter quite a bit of thought. Maybe that is a deficiency Dude also suggests in his comment about the decision. I am afraid I don’t know whether the case is on appeal, or what FWS remedies for the fix are in the works, if not.
I still believe Molloy could have found enough differences between the two recoveries to legally distinguish them, and allow for a wolf delisting on the science of recovery – but now we may not know, unless the Tester bill is knocked down, the appeal reaches a different conclusion on Molloy regarding the DPS matter (or WY submits an acceptable plan to cure the deficiency).
I am not sure whether the political solutions whould have gone forward, and I too found the ID legislature (and Butch too) position troubling. I wonder if their obstreperous behavior would have been dampened some, absent the relisting ruling, and specifically the DPS reasoning for it.
C’mon, you have the money. Subscribe to HCN, for Pete’s sake. :*)
I haven’t seen the High Country article yet, but I’m getting tired of hearing that everyone except the actual sponsors and supporters of wolf budget rider are responsible for the backroom de-listing. A lot of this finger pointing seems to be coming from Democrats and Tester supporters trying to rationalize Tester’s actions. If it was so necessary and such a good idea, why can’t they own up to it? The main thrust of this argument rests on the ridiculous premise that without lawsuits aimed at keeping wolves protected, the anti-wolf, anti-ESA, anti-EAJA voices would just dry up.
jburnham,
I don’t if you are writing about me, but in my post I tried to make it very clear that the rider was all about Tester’s reelection and Democrats trying to keep control of the U.S. Senate.
Ralph, I was agreeing with you. I don’t buy the ‘one lawsuit too many’ argument. The people responsible for the backroom de-listing are the ones that wrote and pushed this rider.
Oh. Never mind then. Sorry.
I wish I could support Tester. Rehberg is the kind of person (from his public image) that I find completely detestable . . . a super rich, phoney rancher, who is willing to take almost any position to get elected.
I’m not a one issue voter. I can accept a politician with a poor record on wildlife if he or she is good enough on other issues. I would think Tester would be slamming Rehberg to the ground with the Republican position on Medicare and other popular economic issues. Perhaps corporate money is now so essential that Tester has to be very easy on them.
I think Tester is getting a pass from the DNCC and the party leaders in their..in my opinion..futile effort to hang onto the Senate in 2012. And the Citizen’s Supreme Court case has all but turned loose the old days of Tammany Hall where money was routinely passed in back rooms. Only now, it is with Internet banking accounts. That decision, if not gotten around, will be the end of a citizen led democracy in our lifetime.
http://pressrehberg.congressnewsletter.net/mail/util.cfm?gpiv=2100073384.795.259&gen=1
Bob- I can’t believe that Rehberg Inc. is still circulating that bogus factoid about 1200 lawsuits filed by 14 enviro groups netting $ 37 million in ” rebates” under the Equal Access to Justice Act. Those numbers were generated out of ether by Wyoming right wing activist lawyer Karen Budd-Falen. They have since been unofficially refuted and she had to withdraw from espousing them , but not before they became oa sort of false gospel among enviro-haters. Stay tuned… I do believe the Government Accountability Office is going to soon be issuing the scorecard on EAJA and Budd-Falen will be eating it. Her claims are proving to be aotently false and defamatory. But the damage has been done.
Rehberg Inc. apparently did not get the memo. Or maybe he did and just swallowed it whole without reading it…
Isn’t that Bob Fanning’s attorney? Mr. Fanning is trying to sue over the 14,000 dead elk in yellowstone. To date, he’s only raised under 4200 dollars to fund his lawsuit.
Karen Budd-Falen, for those who don’t know, is the daughter of a prominent Wyoming ranch family, and she has made career of opposing all wildlife and wilderness conservation efforts. Her legal victory record is poor, probably because she believes in “crackpot” (non-standard) legal theories. Her political success rate is higher, however, especially in today’s unprecedented reactionary politics.
Don’t try to take away Social Security benefits from Idaho’s special “Hill People”. They may not like wolves, but they won’t eat them….I hope.
The 2010 wolf hunts in Idaho and Montana reduced the anti-wolf rhetoric and activism to a mere whimper while not reducing or threatening the wolf population in any way. Wyoming would have eventually been forced to go along with a better plan.There is no reason to believe subsequent hunts would have been any more damaging to the population. Wolves will be fine as long as they are not trapped, poisoned or shot from airplanes en masse. If hunting them is primarily limited to gun hunting by individuals on the ground, their populations will be regulated by habitat and prey abundance, not shooting. I think conservationists made a strategic error here and possibly caused irreparable damage to the ESA in the process.
Really? I’m pretty sure I’ve heard some pretty fierce rhetoric since then. I’ve even heard about people shooting animals and “sweetening” the carcass in an attempt to poison the wolves (and ravens, and whatever else happens by). Maybe allowing people the opportunity to kill wolves just gave them a taste for it.
But if you want to claim that 2+2=5, and that we’ve always been at war with Eastasia, I guess I’ll take your word for it.
“P.S. Unless you are Jedediah Smith or Kit Carson or the like please say grizzly bear.”
Thanks, but no.
Have there been any recent confirmed “sweetening” (poisoning)kills of wolves by self-helpers in the NRM? Been wondering if that would actually happen, or if it was just bar talk.
I don’t know about any confirmed super-recent occurrences. There were those poisoned sausages around Clark Fork last year that killed someone’s dog.
I’m sure a lot of it’s just talk, but some of it’s bragging about things that are actually occurring. My uncle heard an acquaintance in a bar in NW MT bragging about what he’d done last fall. The guy wasn’t saying what he’d like to do, but was claiming to have actually gone through with it. It’s probably a tough thing to confirm when an animal crawls off into the wilderness and decomposes miles from any trail. Just because it isn’t confirmed doesn’t mean it didn’t happen.
It’s hard to determine what’s true and what’s a bunch of blowhard bs. As an example, a friend of mine recently drove over to a team roping in Idaho. A rancher buddy of his over there was braggin about illegally killing a dozen or so wolves on or near his property over the last couple of years )he also claimed one of the wolves was 175 lbs). If those kinds of stories were true, imagine extrapolating that kind of behavior across even 5% of the ranching community. It would create a poaching situation that would go far from unnoticed.
– – – –
Clearly not true. These people have a psychological incentive to say this kind of thing.
Ralph Maughan
My observation is that a huge increase in the amount of the “fierce rhetoric since then” was generated by the “then”, meaning the ruling re-listing wolves in ID & MT. Clearly that ruling resulted in massive recruitment and sympathy to the anti-wolf ranks. Not to say the ruling was technically wrong, it wasn’t. But I think bringing the case was ill advised.
I think “griz” is disrespectful in the same way that I object to “lopes” for pronghorn, “muleys” for mule deer, “whistle pigs” for marmots, etc., etc., but suit yourself.
I’m sure the relisting added fuel to the fire. I’m just no so sure that the rhetoric died down all that much in the ~ 1 year the wolves were delisted.
I think whether bringing the case was a bad idea depends on a person’s view of the science of “recovery” as related to the DPS issue. Some view the DPS issue as a mere legal technicality, and that wolves should be delisted as long as they meet the minimum numbers in the 1994 EIS. Some viewed delisting along state boundaries prior to knowledge of genetic connectivity as a politically expedient impediment to the actual “recovery” of the species.
Regarding griz vs. grizzly bear – typing the whole thing out every time displeases me. I wouldn’t say “griz” out loud because it sounds ridiculous unless you are talking about UM. But I think it’s a cultural thing a la crick/creek, tomayto/tomahto, hurassment/harussment, or my least favorite “an historic.”
What is your opinion on pika? Rock rabbits or not? Cougar, mountain lion, puma, or panther?
Regarding genetic connectivity I believe it is a non-issue with a species whose juvenile males frequently disperse hundreds of miles, in some documented cases over 500 miles.
I think a pika is a pika, not a rock rabbit. I find all the terms you list for mountain lion ok but I prefer mountain lion with cougar second and the other too very distance third and fourth. I also think if you’re from the west the e is silent in coyote – it’s a regional thing like some of your other examples.
“But if you want to claim that 2+2=5, and that we’ve always been at war with Eastasia, I guess I’ll take your word for it.”
I hate to admit to being dense but this made no sense to me – please clarify.
Ted Chu,
I think you have the basis of one of the stronger arguments about mistakes wolf conservationists made. I agree with you that neither of the winter of 2009-2010 wolf hunts damaged the wolf population in Idaho or Montana. They probably even made the wolves more wary. After all, Idaho didn’t even fill its hunt quota, so the threat of a higher future quota was not all that menacing.
The hunts also reduced the anti-wolf sentiment, but it was hardly to a whimper. The sentiments of the Idaho Fish and Game Commission and the state legislature were ominous about using techniques beyond rifle hunting. The anti-wolf groups were tied into the general far right activism that the author of “Cry Wolf,” James William Gibson, describes. Because their goal is social and economic reactionary revolution, they were not about to let the matter rest. Wolves were too good an organizing symbol.
You may or may not agree with me, but I think livestock oligarchy that rules rural Idaho and the state as a whole in concert with some big corporations, was determined to reverse this affront to their power (the wolves) from the start. They did not rest.
Then too, Judge Molloy’s decision eliminated hunting even though some wolf conservation groups hoped that hunting could continue.
Agreed, and this is where I think WM’s argument has merit. That is, had the case been decided on a claim regarding the science of recovery as opposed to the DPS issue, this would have been to the strategic advantage of conservationists, who could have claimed they had “science” on their side (an argument that annoys me, BTW). Having the issue decided on a “technicality” of law allowed those who oppose additional recovery efforts to frame plaintiffs as desperate obstructionists who would do anything to keep wolves listed.
Regardless, the point is moot, and this whole guessing game about what would have been reminds me of a former professor who admonished students to “beware the counterfactual”.
The DPS argument is biologically important – even if you ignore this, then these criticisms ignore the political and legal realities confronting all of us with this litigation, and it’s hindsight/armchair quarterbacking at its worst.
First – if anyone believes that pro-wolfers could have somehow placated or appeased the anti-wolf forces in the political arena by just ‘doing something different’ – then they are seriously naive. There is no doubt that those voices existed within conversations about the litigation as it was ongoing … but time and time again this proposition is defied by reality. The political reaction had nothing to do with the fact that advocates won on summary judgement, and everything to do with the fact that advocates won. period. That some folk are buying into the anti-wolf argument that the DPS is a “technicality” and didn’t have scientific importance is seriously troubling, and flat out wrong, but that’s just my opinion.
the genetic connectivity and population ‘recovery’ science issues were always on the table – they just weren’t addressed in Summary Judgement – because there was a real controversy of fact.
Had wolf advocates just allowed FWS to break the law with the DPS issue, hoping to go toe-to-toe on the population and connectivity issues – it is very likely that we would have been able to demonstrate better science, better analysis, etc. However – when you hit the mat on controversies of fact, a plaintiff can’t just present a better case, or convince a judge that their experts are more competent – the law affords agencies a great deal of deference and that is a MUCH higher standard – i.e. showing that the government’s rule outright ignored science or was arbitrary and capricious.
Strict constructionist judges like Molloy are far more likely to rule favorably for wolf-advocates on a matter of law than to act as an arbiter of science.
That’s the bottom line.
In thinking about this before and since I made this post, I do think there are a few things wolf conservationists could have done better. More and more to me, the hunt stands out, though I’m not sure conservationists could have really kept it going under relisting.
All that aside, I think Brian Ertz is pretty much right.
Given a different strategy, the details would have been different, but overall I think we’d be in about the same place as we presently are.
You can’t win forever on an issue like this on a judicial strategy alone. When Obama was elected, I was overjoyed and didn’t even consider he would be weak, indecisive, and unsure of his values. But he was, and that meant conservationists would eventually lose to the three backward states.
However, conservationists don’t need to despair because there are a lot of wolves on the ground. Their genetics is very good — much better than the Great Lakes’ wolves. The first wolf conservationists were willing to settle for a couple packs of wolves in Yellowstone Park. How sad that outcome would have been. Wolves are instead performing their ecological role over a much wider area.
Brian:
I’m sorry, but you will have to explain how the DPS issue is “biologically important”? I have worked among ecologists every day for the past nine years, and I don’t know that I’ve ever heard one of them use “DPS” in a sentence. From a biological perspective, removing wolves from ESA protections in throughout the NRMs with the exception of Wyoming–as FWS proposed–would have given wolves MORE PROTECTION then they would have been afforded were they removed throughout the DPS with Wyoming included.
Second, I would not argue that ALL “anti-wolf forces” would be placated by “doing something different”–but that is a straw man argument. You don’t need everyone to agree with you to “win the war” against radicalism (if that is your standard, you will ultimately fail); rather, you need the “issue public,” the majority of the people who care, to agree that your position is the most logical and politically sound.
As I said above, I do not doubt that the legal outcome would have been different had the decision turned on the science of recovery, but I do think a ruling on the science of recovery would have put pro-wildlife advocates in a better strategic position.
Then again, who cares, the argument is academic.
Brian,
++the DPS argument is biologically important++
I am with JB on the content of his first paragraph. Would you mind explaining why you think it is?
As I have explained before on this forum, if Judge Molloy is correct (and I think he is) it is an institutional flaw (oversight) in the state conservation implementation provisions of the ESA – it’s got nothing to do with biology, but I would sure like to hear your explanation why it does. You’re up to bat.
Ralph said:
“I want to repeat that the genetic quality of the reintroduced wolves is the best in the lower 48 states. They are all pure canis lupus and with a lot of heterogeneity in their genes.”
I don’t know if this was directed at me. I didn’t mean to imply that there was any current genetic problem. Rather, I only meant to note that genetic exchange between subpopulations was one of the wolf recovery criteria of the 1994 EIS, and that delisting/hunting before there was evidence of exchange might have hindered recovery.
As was noted by the court in Wyoming v. Dept. of Interior, there are some pretty high/snowy/often foodless mountains for the wolves to cross to get in or out of WY. I don’t think hunting them along the periphery would necessarily facilitate genetic exchange.
– – – –
Dude, it was directed generally because I think there is too much dismay about the delisting. We are much better off than when there were no wolf packs in the Northern Rockies.
Ralph Maughan
by law biologists inform the recovery area of species – when listing a species using the DPS tool, a DPS is determined using biological criteria.
when promulgating the delisting rule, FWS had to establish a DPS – rather than relying on biological criteria as to the new DPS to be delisted – FWS unlawfully applied a political standard that had nothing to do with the recovery range – biologically speaking – and everything to do with shaving Wyoming off.
It should be noted that in the original recovery rule biologists determined that recovery of wolves in the NRM required recovery of populations in each of the three states. EACH. By violating the principle of a biologically determined boundary/range by which to establish a DPS – bureaucrats both unlawfully stepped on science as the determinate to DPS designation, but also threatened the biological integrity of recovery – which biologists previously determined ought ensure recovered populations in each state to ensure genetic connectivity.
I agree. It’s difficult to accept that the “DPS tool” has any biological validity when it is drawn on state boundaries several of which are straight lines. That said I think the original requirement for a minimum number of wolves in each state was appropriate politically, and I understand why is was easy for F&WS to simply adopt that criteria come de-listing time. It was convenient, established and it put the heat on Wy to shape up. Too bad we didn’t give them a few years so they could do so without losing face. And I repeat here my belief that genetic connectivity within the NRM will be taken care of by the wolves themselves since juvenile males of this species consistently disperse over very long distances.
Brian:
The phrase “distinct population segment” is not defined in the ESA. Because the term has no scientific or biological meaning (i.e., it is ambiguous) agencies are entitled to judicial deference in interpreting the phrase. Ironically, it is the agencies (NMFS, FWS) that determined that DPS boundaries should be demarcated by biological boundaries (as opposed to political boundaries) when they wrote DPS policy in 1996. Yet, political boundaries (i.e., the US/Canada border, the MN, WI, SD, ND, IA borders) that delineated wolves listing status to begin with.
In another Post, WM argued that the DPS language was a flaw in the ESA. I disagreed; principally because it was NMFS/FWS’s interpretation of the DPS phrase that has led to this mess, not anything in the original ESA.
I would argue that state borders are, in fact, biologically-relevant in the case of wolves because threats to wolves are primarily regulatory in nature (and vary considerably along state lines). Thus, these boundaries are appropriate for delineating DPS’s.
Here is what I wrote in the other post, which seems relevant again:
“1967-Wolves are listed under the predecessor to the ESA
1973-ESA passes, wolves listed shortly thereafter
1978-Wolves are reclassified throughout the conterminous US states–both the US/Canada border and MN/surrounding state borders are used to distinguish listing status.
1978-US Congress amends the ESA to include listing for “distinct population segments”–the terminology is not defined.
1994-EIS for NRM wolf recovery published.
1995-Wolf reintroductions begin.
1996-USFWS/NMFS publish an interpretation of DPS policy
2003-The FWS first attempts to use DPS policy to delist/downlist wolves nationwide.
It is instructive to read DPS policy to get an idea of what the Service was thinking at that time. DPS policy allows a DPS to be defined when a population is (a) discrete/distinct (i.e. “markedly separated”), and (b) significant. The discreteness test is what is relevant to this conversation:
“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.”
Here is the Service’s justification (in response to review) for including international boundaries in the test:
“The Services recognize that the use of international boundaries as a measure of discreteness may introduce an artificial and non-biological element to the recognition of DPS’s. Nevertheless, it appears to be reasonable…to recognize units delimited by international boundaries when these coincide with differences in the management, status, or exploitation of a species.”
The FWS could just as easily written into their DPS policy the same rule for states, as we now see that political boundaries “coincide with differences in the management, status [and] exploitation” of wolves. The FWS chose not to go this path. It was, in my opinion, a poor decision and it (not the ESA) has put us where we are today.”
I want to repeat that the genetic quality of the reintroduced wolves is the best in the lower 48 states. They are all pure canis lupus and with a lot of heterogeneity in their genes.
Low to medium level persecution of the wolves, hateful as it is me, will disperse them into nearby states and might help establish new populations.
I think that the fact that wolves remained on the list because of regulatory problems muddies the waters when we talk about the broader DPS policy.
If part of an endangered species’ metapopulation in one state meets the criteria for delisting, but those species were endangered because of some biological factor in a neighboring state (say competition from an invasive species), would we still be seriously talking about delisting in the healthy state? I don’t think we would.
I think the DPS policy does have biological validity. I don’t think people can get their head around what exactly that is because they misunderstand what “endangered” means under the Act. Granted, it’s not exactly intuitive that an animal can be in danger of extinction in one area but have a robust population in another, but that doesn’t make the idea biologically invalid.
It makes sense to be able to list a portion of a species where it’s endangered even if there is a robust population of the same species in Alaska or wherever else. I think there is biological merit to listing a DPS, when a portion of a single DPS is delisted piecemeal before the species has recovered throughout its suitable habitat in the DPS. If we’re going to abandon the goal of recovering a species throughout its suitable habitat on the ecosystem level where it was listed, and use smaller delineations instead, what’s to stop delisting on the basis of counties or individual National Forests? Idaho County might have been at its carrying capacity years ago, but that’s what allowed the wolves to disperse to other areas of suitable habitat.
I think it would be foolish to dismiss the entire DPS idea as a flaw devoid of biological integrity just because one state’s regulatory obstructionism and the unfortunate legislative results that followed. Just because the DPS was delineated along artificial boundaries that contain an ecosystem doesn’t mean we should fragment management authority into smaller pieces. DPSs were intended to be managed and delisted as a unit. Those boundaries only became arbitrary after Wyoming’s regulatory obstructionism kept the wolves on the list after they had slightly outgrown those boudaries (into small areas of WA, OR, and UT). The DPS listing level made biological sense as a management tool when it was created, and still makes sense today. We shouldn’t throw out the baby with the bathwater.
Rather-
I think there is biological merit to listing a DPS THAT DOES NOT EXIST when a portion of a single DPS is delisted piecemeal before the species has recovered throughout its suitable habitat in the DPS.
“DPSs were intended to be managed and delisted as a unit.”
And herein lies the issue, wildlife policy (sans ESA) in the US is set by states who act as trustees for their citizens. Biologically speaking, white-tailed deer in the Eastern US might be considered one contiguous population, yet the borders of states delineate policy and management, and managers often discuss the populations of animals as “Michigan’s deer population” or “Minnesota’s wolf population”, despite the fact that these animals are connected to populations in surrounding states. The only thing that makes them “distinct” is that the policy regime changes when you step across a political border.
But more to the point, I find it terribly ironic that people continue to argue that state borders are illegitimate for delineating DPS’s while fully accepting the use of international borders. The logic is EXACTLY the same.
I would also argue that delineating DPS’s along state lines would presumably require each state to maintain its OWN viable population, rather than rely on neighboring states in order to reach population goals.
JB,
++In another Post, WM argued that the DPS language was a flaw in the ESA. I disagreed; ++
Not recalling exactly what I said for you to reach this conclusion (I do remember having conceded a point, however), let me clarify what I have stated on this forum before.
This NRM delisting experience has shown the ESA is flawed in its failure to give direction to FWS (or alternatively they have not thought outside the box, if they have authority) in how state conservation plans can be carried out when it involves multi-state effort and cooperation. Section 6 of the ESA, and references in other sections makes it clear states have roles to play in recovery and ultimately day to day management under conservation plans after delisting.
Here we have the failure of WY to do its part (assuming only for the sake of this discussion that the MT and ID plans are scientifically defensible under the law) which keeps ID and MT from being able to implement their FWS approved plans. The law, or FWS interpretation of it in setting DPS policy (JB, your argument), should not allow for this to happen. It flies in the face of cooperation with states provisions of the law, and I submit the drafters had no idea something like this would happen. The possibility was present in the NRM wolf recovery plan as it unfolded after 1987 and was not considered as an issue in the 1994 EIS.
The 2009 delisting rule defines the NRM DPS (in part along state lines for ID, MT and WY and delineated by man-made road features in OR, WA and a tiny portion of UT, so this political boundary thing is really kind of arbitrary anyway). This is, itself, arbitrary and a proxy for a biologically and politically sellable scale. That is important. The delisting rule keeps ESA protection ONLY IN WY, where NRM wolves remain under the stewardship/protection of the ESA and FWS. It does not break up the DPS. This is also very important.
We have already agreed that there would be no harm to WY wolves under continued FWS protection as listed, in fact they are protected at a higher level than if they were delisted, while the remainder of the NRM DPS is delisted and under the purview of the respective states, subject to post delisting monitoring.
Molloy’s ruling was that the ESA says no break-up DPS for delisting purposes where portion of the DPS species remains listed. Likely the right ruling under the law. Hugely bad practical result. The rule did not modify the DPS itself, only the MANAGEMENT OF IT – who does what to protect some delisted and listed wolves.
So many other environmental laws passed by Congress during the 1970’s had contingency provisions which allowed for institutional/governmental flexibility in the event an individual state decided to be difficult when implementing federal standards (sometimes accounting for state standards which differed to account for local conditions) for water, air or solid waste.
I still do not have an answer to my question, posed many months ago – Could FWS have delisted the entire DPS, and retained “management” authority over WY wolves (allowing no take or other WY state sanctioned management except as FWS authorizes, like it does now) until such time as WY had an approved plan, and assumes good faith management responsibilities?
And, there is nothing in that concept, or the 2009 delisting rule which prevents a DPS from “being managed as a unit.” The unit is managed as a whole, just parts of it with different protections as needs dictate, and that is the practical beauty of such an approach.
The law as seen by Judge Molloy is the problem, and the Tester bill, in part, sought a fix for the institutional defect. So, it withstands legal challenge we are kind of where we would be institutionally, with the DPS intact. The scientific aspects of recovery are yet another issue if ID seeks the low point minimum of 100/10 plus a buffer for the
Oops, an editing problem. +….plus a buffer for the.++ delete last two words
“Biologically speaking, white-tailed deer in the Eastern US might be considered one contiguous population, yet the borders of states delineate policy and management, and managers often discuss the populations of animals as “Michigan’s deer population” or “Minnesota’s wolf population”, despite the fact that these animals are connected to populations in surrounding states. The only thing that makes them “distinct” is that the policy regime changes when you step across a political border.”
True, but whitetail aren’t endangered or limited to confined areas. Quite the opposite.
“I find it terribly ironic that people continue to argue that state borders are illegitimate for delineating DPS’s while fully accepting the use of international borders. The logic is EXACTLY the same.”
Similar, but not the same. We can’t tell Canada or Mexico how to manage their endangered wildlife, or require them to undergo an EA/EIS before they start a project. But the federal gov. has management authority over the states.
“I would also argue that delineating DPS’s along state lines would presumably require each state to maintain its OWN viable population, rather than rely on neighboring states in order to reach population goals.”
You may be right here. Still, I generally don’t favor fragmented regulatory authority by self-interested actors. I think it still has the potential to create cross-border conflicts when externalities of state management spill over across borders. Lots of species are migratory and this approach would be extremely difficult for that reason. I’d rather see a more collaborative approach with common goals facilitated at the federal level.
WM:
My points are as follows: (1) DPS policy was SET BY NMFS/FWS, not the ESA; therefore, it is not a flaw in the ESA, but a flaw in the agencies interpretation of the law. (2) “Failure to give direction to FWS” should be read as “agency discretion”; indeed, it was the lack of direction that led to NMFS/FWS publishing their 1996 policy that spelled out how to interpret the policy. I think you would agree that agency discretion is generally viewed positively–in general, people would rather have scientists setting detailed policy (rather than Congressmen). For these reasons, I do not see fault in the ESA, but rather, fault in how the agency interpreted the DPS concept. Thus, again the POLICY not the LAW is the problem.
“Could FWS have delisted the entire DPS, and retained “management” authority over WY wolves…”
No. The FWS/NMFS only have authority over threatened and endangered species. Delisting a species (in this case a DPS) requires the removal of that authority, which would turn management over to the states.
Another question: could FWS simply delist Idaho and Montana claiming that the population is now part of the Canadian (unlisted) population, while leaving the listing status intact for Wyoming? I imagine attorneys at Interior have discussed (and rejected) this idea, but this would be a new approach to delisting that is untested in the courts.
“And, there is nothing in that concept, or the 2009 delisting rule which prevents a DPS from ‘being managed as a unit’.”
I disagree, in part. A DPS is only relevant for a listed species, which is generally managed as a single unit. However, once the animals within a DPS are removed from protection, their management reverts back to states, who will manage the animals within their borders for the people who reside within those borders. These populations are not managed “as a unit” but separately, by distinct agencies with differing policy objectives. You might argue that there isn’t anything that prevents these agencies from collaborating, but I think that depends upon how one interprets states’ trustee role and the corresponding obligations to their citizens.
Dude:
Here is the FWS/NMFS’s logic for using international borders, as expressed in their 1996 DPS policy:
“The Services recognize that the use of international boundaries as a measure of discreteness may introduce an artificial and non-biological element to the recognition of DPS’s. Nevertheless, it appears to be reasonable…to recognize units delimited by international boundaries when these coincide with differences in the management, status, or exploitation of a species.”
Note that who has authority or control over wildlife is not addressed; however, they do argue…
“Recognition of other political boundaries, such as State lines within the United States, would appear to lead to the recognition of entities that are primarily of conservation interest at the State and local level, and inappropriate as a focus for a national program.”
If you or anyone else can make sense of this justification, I’d love to hear it?
– – – –
Regardless, I would stand by my earlier point: The LOGIC for using state boundaries to delineate DPS’s (i.e., that state boundaries “coincide with differences in the management, status, or exploitation of a species”) is exactly the same. What you’ve pointed to ultimately amounts to a difference in the logistics of recovery and enforcement, not the underlying logic, and I would concede that there are indeed differences in that regard.
WM said:
“I still do not have an answer to my question, posed many months ago – Could FWS have delisted the entire DPS, and retained “management” authority over WY wolves (allowing no take or other WY state sanctioned management except as FWS authorizes, like it does now) until such time as WY had an approved plan, and assumes good faith management responsibilities?”
I don’t see how. It would seem to me that after delisting FWS would lose most of its authority to manage wildlife under the ESA and that authority would revert to the states. After delisting, pretty much the only thing the Act requires is the five-year monitoring period. Wouldn’t it take an act of Congress to give FWS the added authority to manage a state’s non-endangered wildlife?
“And, there is nothing in that concept, or the 2009 delisting rule which prevents a DPS from “being managed as a unit.” The unit is managed as a whole, just parts of it with different protections as needs dictate, and that is the practical beauty of such an approach.”
I think this faces a similar problem of authority. The ESA provides federal authority for managing/conserving endangered species. 16 USC 1531(b). Determining whether an animal is endangered occurs at the “species” level. 16 USC 1533(a)(1)(b). A species under the ESA includes species, subspecies, and DPSs. 16 USC 1532 (6), (16). Thus, once a species/subspecies/DPS is determined to no longer be endangered, the federal authority/protections keyed by the “endangered” status (such as take restrictions and consultation requirements) no longer apply. 16 USC 1532(3).
It’s an all or nothing kind of deal – the DPS is endangered or not. What you’re suggesting seems to still be a partial delisting with quasi-ESA protections for quasi-delisted species, which isn’t provided for under the Act.
However (to hypothecate) maybe if FWS had created 3 smaller DPSs at the outset while the animals were still seperate we could have avoided this issue.
JB,
I would argue that the differences in management authority are implicit in the logic underlying the policy of recognizing DPSs that straddle international borders.
As you noted in an above post:
“Discreteness: A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions:
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.”
However, because endangered species are managed under one federal “regulatory mechanism” in the U.S. (the ESA), it doesn’t make sense to accord different management stategies to states when the animals regularly cross state lines and are ultimately managed under the same federal law. I think that is what the policy was getting at when it said recognizing state boundaries is “inappropriate as a focus for a national program.”
In the context of managing listed species under the ESA, state boundaries are not supposed to “coincide with differences in the management, status, or exploitation of a species.” Therefore, state boundaries were not acknowledged because they would undermine the national character of the program and accentuate the inconsistent/fragmented management the ESA attempts to avoid. It’s not that there isn’t a similar logic in acknowledging inconsistent management strategies exist between states and between nations. It’s that the ESA aims to prevent those inconsistencies between jurisdictions and replace them with a more protective standard across the area where the endangered DPS/species exists. We can only do that on our own turf.
I think acknowledging international boundaries was a necessary evil that was justified for the practical reason that differences in management authority exists between nations, but not inside the U.S. Additionally, it allows us to manage border-straddling species that may have robust populations in Canada/Alaska (wolves, woodland caribou, grizzlies, etc.) at the DPS level.
Am I missing your point?
Dude:
If I understand you, you’re essentially saying that the DPS isn’t relevant at the state level because once listed, the regulatory regime is the same, no matter what state the species is in…is that correct?
I would argue that the only time the DPS language becomes relevant is when determining the listing status of a “species” (i.e., species, subspecies, or DPS). When FWS/NMFS make these determinations, they examine 5 statutorily-defined “listing factors” which include the “inadequacy of existing regulatory mechanisms”. Because these regulatory mechanisms vary based upon state policy (and political boundaries), therefore threats to populations vary based upon political boundaries. Again, I agree that listing under the ESA “corrects” for these regulatory threats by treating all animals in a population the same, no matter where they reside; however, this equality only occurs after a listing status determination has been made. If there is variation “CONTROL OF EXPLOITATION, MANAGEMENT OF HABITAT, CONSERVATION STATUS, OR REGULATORY MECHANISMS” that leave populations in one state more vulnerable than others, I would argue that the discreteness test has been met.
JB,
++These populations are not managed “as a unit” but separately, by distinct agencies with differing policy objectives. You might argue that there isn’t anything that prevents these agencies from collaborating, but I think that depends upon how one interprets states’ trustee role and the corresponding obligations to their citizens.++
But, wasn’t that the point about the 2008 NRM genetic diversity MOU (which WY didn’t sign by the way), agreeing to manage and share information in the spirit of the cooperative multi-state effort during listed and delisted periods?
http://www.fws.gov/mountain-prairie/species/mammals/wolf/signed_genetics_MOU.pdf
Your comments and those of Dude in response to my question on whether the law allowed FWS a day to day management role of a delisted species pretty much tracks my own thoughts. I wanted input from some knowledgeable folks to see if I was wrong. You did not disappoint.
So if we are right on that, limiting/prohibiting FWS as the day to day manager of delisted species underscores my assertion that the institutional features of the ESA are seemingly inadequate for complex multi-state matters such as the NRM DPS, which require an all or nothing delisting supported by adequate state conservation plans by all participants. Breaking up the DPS along political lines or into smaller units coinciding with state boundaries, into little ones as a possible solution, is a nonsensical workaround for a statute and agency policy that deserves more forthright treatment.
So, what results is a constant stream of court decisions telling FWS what IT CANNOT DO on DPS’s, delistings and multi-state cooperation matters, resulting in paralysis. That happens when an agency is not given a good roadmap under a statute and then is expected to write regulations implementing complex concepts (a noted feature of so many of our environmental laws). That is bad government.
“If I understand you, you’re essentially saying that the DPS isn’t relevant at the state level because once listed, the regulatory regime is the same, no matter what state the species is in…is that correct?”
Yep.
“I would argue that the only time the DPS language becomes relevant is when determining the listing status of a “species” (i.e., species, subspecies, or DPS). When FWS/NMFS make these determinations, they examine 5 statutorily-defined “listing factors” which include the “inadequacy of existing regulatory mechanisms”. Because these regulatory mechanisms vary based upon state policy (and political boundaries), therefore threats to populations vary based upon political boundaries. Again, I agree that listing under the ESA “corrects” for these regulatory threats by treating all animals in a population the same, no matter where they reside; however, this equality only occurs after a listing status determination has been made.”
I agree.
“If there is variation “CONTROL OF EXPLOITATION, MANAGEMENT OF HABITAT, CONSERVATION STATUS, OR REGULATORY MECHANISMS” that leave populations in one state more vulnerable than others, I would argue that the discreteness test has been met.”
I would agree with this except for the fact that the DPS policy/test doesn’t recognize regulatory differences across state lines in analyzing discreteness. It could, and those differences across state lines do exist, but the DPS policy doesn’t go there because those management differences can be ameliorated rather than accommodated. I see how
the same logic applies to regulatory differences across jurisdictional lines, but I don’t think that logic can reach the same policy conclusion where the circumstances (managament authority) are different.
Generally, the ESA tries to manage on an ecosystem/habitat/population/significant portion of range level. It is supposed to be driven by science. 16 USC 1533(b)(1)(A). Its purpose is to provide for the conservation of endangered species/subspecies/DPSs and THE ECOSYSTEMS ON WHICH THEY DEPEND – NOT just specifically whatever smaller piece of ground where the animal is critically endangered. 16 USC 1531(b).
The DPS policy still follows this general rule of managing on the ecosystem/population level with the exception of international boundaries. It makes that exception for reasons of necessity – we can’t control how other countries manage their wildlife but wish to protect the portion of a population that resides on our side of the border. That necessity doesn’t exist between states because the ESA can provide the same management standards, so the DPS policy does not make the same exception for differences between states.
I think I get where you’re coming from – that because it makes sense to “recognize units delimited by international boundaries when these coincide with differences in the management, status, or exploitation of a species”, the same logic should be extended for differences between states. Are you advocating a substantive change to the law or DPS policy?
What I’m saying is that the circumstances (management authority) aren’t the same, so the logic and policy applied to one circumstance (international) doesn’t necessarily fit the other (intranational) given the broader goals of the ESA. Listing and delisting in the states creates a more uniform management standard across jurisdictions. Thus, there’s no reason to carve up management into smaller (non-biological) pieces to accommodate management inequality between state jurisdictions.
Does what I’m saying make sense?
Dude:
Yes, we’re on the same page now, and I generally agree. My point has always been that DPS policy should have recognized state boundaries as appropriate for delineating DPS’s and (in my personal opinion) should be changed. I would concede the point about the ESA attempting to protect/manage species at the system level; which (I would agree) is probably why the policy was structured the way it was. However, wolves, grizzly bears and other species with vast habitat requirements and extremely low densities frustrate the “ecosystem approach” because (a) their range crosses state boundaries, (b) in the US species management/policy is determined at the state level, and (c) the inadequacies of policy (set by the states) are the primary threats to these species.
As WM has argued (and I agree with him here), these factors scream for a pragmatic solution. I happen to think the solution is changing DPS policy (not amending the ESA itself). FWS/NMFS have the authority to do it, and it is a lot simpler (and less risky) than amending the Act.
– – – – –
WM:
I did not mean to suggest that cooperation in management is not possible–certainly MOUs are an example of this. I would argue that, in making management decisions, the state (as trustee) is obligated to consider only the interests of their citizens (the beneficiaries). When the interests of their citizens conflict with the interests of citizens of other states, one could make an argument that such collaborations are inappropriate, if not illegal. Sorry, I don’t have time to give this argument the treatment it deserves.
I disagree with your assertion that the ESA is an example of “bad government”. “Lack of guidance” should equal agency discretion and judicial deference; I much prefer having federal agencies writing complex environmental policy and federal judges interpreting ambiguous law, over allowing the morons who currently walk the halls of Congress to modify the Act.
Oligarchy is exactly right, Ralph, not this carefully nurtured image of the family rancher whose wife lights a candle in the window hoping he comes home every night…
I have to chime in on this point about the initiation of legal state wolf hunts by the populace goes a long ways towards defusing the anti-wolf rhetoric.
If one measures the temeperature and pressure of the debates ( by reading the comment forums and blogs , if you can tolerate that). You can probably detect a lowering of both when the anti-wolfers are given a wolf license and a season and quota. It’s what they live for and frankly it’s all they know; e.g the only tool in their conservation toolbox being a rifle.
We all know that serious ” management” of significant numbers of wolves, or particular wolves who have been depredating livestock, can only be done by agency professionals and/or their contractors , using massive physical resources such as aerial gunning and tracking the radio collars ( neither of which civilians cannot do legally. Or poison.
However, my experieince on the ground has been otherwise. As an ardent pro-wolfer in a serious conflict zone—Cody Wyoming, a hotbed of anti-wolfers — I have long stood up and said that we must have limited quota regulated hunts as a forward management tool;. I have encourage outfitters and the gun and hunting clubs to at least hear me on this…that virtually EVERY conservationist/ environmentalist I know not named Suckling would not stand in the way of wolf hunts, if not outright support them. We WANT wolves to be hunted, for precisely the reason Ted Chu states above…it’s a great pressure and temperature relief valve. It should go a long ways towards defusing the bombs the anti-wolfers build in their basements. I encourage elk outfitters to also book wolf clients.
I honestly support a limited quota elk license for those areas inside Wyoming’s so-called ” Trophy Wolf Zone” that had a wolf coupon on it as well. It has not been that many years since Wyoming Game and Fish put a Black Bear coupon on its elk tags. I think the only reason they quit doing that was to break off the bears as a separate species revenue channel.
However, I have to report with great sadness and greater exasperation that the outfitters and elitist hunting clubs just plain hate enviros. That hatred is pathological, and apparently incurable.
Even when we give the rifle crowd exactly what they want— state wolf hunts—just the fact that it is coming from an environmentalist or a genuine wildlife conservationist who does not pay dues to Sportsmen for Sportsmen and Maybe Fish and Wildlife , or Rocky Mountain Elk Foundation suddenly becomes a pathogenic disease carrier to be eradicated along with the wolves themselves.
I honestly have tried to open up and come to common ground with the hunting community on wolves… meet me in the center and let’s work out a wolf plan.
They will have none of that. They do not want to be seen compromising with enviros under any circumstance, even when it is in their best interests to do so.
And you wonder why I no longer work the outfitting camps or guide these days. It was the increasingly arrogant or even hateful human company I was having to keep that ran me away from commercial elk outfitting, not the hunting itself or the backcountry experience.
I’ve seen the good old days of elk hunts. What any state licensed Grey Wolf hunt in Wyoming will eventually look like should that Day of Miracles ever come is up in the air , for now. It’s a fogbank, actually.
Of course the rabid anti-wolf and radical right folks soldiered on, but isolated they are ineffective. I don’t think the livestock people saw this as a winner once hunter support was removed and for the vast majority of hunters and everyday folks in MT & ID the issue was resolved, wolves had been delisted as originally promised as recovery goals were exceeded by a large margin, and it seemed the ESA worked, albeit rather slowly. They didn’t much care about what went on in WY or distinct population arguments which from a biology standpoint in this case is a red herring. I can tell you that the ID Fish and Game people talking directly to many hunters said the anti-wolf chorus went from a full throated roar to a rare acappella during the fall of 2009.
Who are the “wolf conservation groups” that hoped hunting could continue?
I agree with the general point you make about trapping, airplane hunting and poisoning in terms of impact on populations. Thing I ask is…if there is no consequence if people there start doing the trapping and poisoning on their own, or even do it with the tacit “wink of approval” from the authorities, will the wolf populations survive with the added pressures of what is likely to be TWO hunts a year?
Based on my experience with the enforcement folks in the subject states and USF&WS enforcement agents there is no wink of approval for violators regardless of what regulation is at issue, not ever. There certainly wasn’t while wolves were listed, even toward the end when there were lots of wolves and there was lots of anti-wolf pressure.
The few illegal poisoners and trappers had no impact on wolf populations during the initial recovery period when there were far fewer wolves and I don’t expect they would now.
While there may not have been any “wink of approval” by the IDFG or USF&WS agencies, there certainly wasn’t any effort made to discourage the talk about taking illegal actions either. From my viewpoint, the agencies just stood back and let things fly. Why, I couldn’t even get the courtesy of a reply from several communications with the IDFG LE head.
IDhiker – agree. Around here, even before wolves were delisted, a local CO could hardly bother himself to go investigate the report of a dead wolf. That CO’s moved on, thank goodness.
http://www.biggamehunt.net/blogs/bghjournal/idaho-sheriff-holds-308-sss-wolf-pack-raffle
P.S. Unless you are Jedediah Smith or Kit Carson or the like please say grizzly bear.
What, no Jeremiah Johnson included in that list, Pilgrim? :*)
“With a majority in the U.S. Senate the strange new Republican Party might well end the hated Medicare, Social Security, minimum wage, unions, consumer safety laws, environmental protection and much more. “Crying wolf” for them could at long last end in their successful hunting down, killing and feasting on the grim remains of America’s middle class society.”
Excellent description of the phenomenon. It will be interesting to see how far they get, with media funded by the wealthy continuing to clear the way through susceptible voters’ minds. However, it’s difficult to see it adding up in the long-term, i.e. that they could maintain support after purposely crashing programs depended on by an ever-shrinking middle class, not to mention an ever-growing lower class — while diligently shielding an increasingly concentrated income stream for the small upper class. The statistics on what both median and average American households (even those at or near retirement age) have for net assets beyond their accrued, discounted SS-medicare benefits are shocking. True, it may be possible to keep a large fraction of these people glued to conservative TV with hard, paranoid hearts and without an environmental concern beyond the paint on their walls. But, as Alan Simpson (Deficit Commission) said, “when they waddle up to the window at age 65 after putting 6.25% of all their jack in that thing, they’re going to want something back.” As the sad stories spread to a larger and larger fraction of society, who will ultimately get the blame for having taken a knife to the safety net instead of a mending needle?
Seak, you are right.
With the steep decline of defined benefit retirement plans and the move to defined contribution plans and 401Ks, the huge shortfall in retirement funds for individuals is just being seen. This alone, not to mention a gutting of Medicare, is enough to cause great social unrest and backfire in the near future, unless the elites pushing these wealth redistribution schemes are very clever, which they might well be.
Even if they do avoid the blame for blood running in the streets, their own wealth will decrease rapidly. They seem forget that businesses need to have paying customers, and the 2% that are rich people are not enough.
Taking a more simplistic view, the act of Rick Hobson with the support of the wolf advocates was the straw that broke the camels back. Hobson published names of successful wolf hunters including minors in THE IDAHO STATESMAN. Many, many were threatened. The hatred exhibited towards the people on Hobson’s list was deemed unacceptable by the public and by politicians.
Not surprising. A lot of people were disgusted with the hunters that killed wolves.
Too bad–they didn’t deserve to get harassed for something that was completely legal and within their right to do.
I think publishing lists of people who some think have done a bad thing, is not a good thing to do. It can backfire and spread.
Hobson did publish this list. I don’t know if many of the hunters were harassed, but it would make them worry. Some anti-wolf people also have their lists, and the end result is that I practice shooting more than previously.
I know Robert Millage got phone calls. When an emotional and powerful issue such as this, it’s not surprising to see a lot of people angry, disgusted,and pissed off and lash out at those whose actions they find disgusting whether legal or not. This is how some people are. It happens on both sides. The reason why a lot of pro-wolf advocates don’t attend a lot of these meetings that fish and game agencies have on wolves and other wildlife issues is because they have been threatened and harassed by hunters in the past. it works both ways.
jon,
I think it will take a long time, but it can be done. There is still a lot to be learned. When one thinks of all the predators that have been removed, one must wonder at how out of whack nature has become. Everyone is so concerned about our elk, our deer, our moose… but it’s the little things, due to predator removal that will cause the real carnage. I think we are just beginning to see this happen.
Yeah, whether legal or not, a lot of people were disgusted by it. Just because something is legal, does not make it right.
jon,
That is the same argument the anti’s use in terms of ESA, reintroduction, etc. Some common ground has to be found.
I think that will be easier said than done immer.
Tell that to the doctors whose names were publicized for providing legal abortions and were then tracked down and murdered. All vigilantism of one sort or another with it’s attendant risks to both sides.
jon,
I wish people would think beyond whether they are disgusted with what other people do. We need to maintain tolerance of different views. That doesn’t mean a person is weak in his or her views because they tolerate, but it means they accept that tolerance is practical because the table can be quickly turned on them when it comes to another issue.
Absolutely Ralph…the “two wrongs make right” approach isn’t working.
Ralph, 100% on-the-nose.