Wolf Pop Segments Raise Distinct
The Endangered Species Act not only “protects” species, it also “protects” something the Act refers to as “distinct population segments.” Nobody knows what a distinct population segment is, however, since it has no definition in biology or in the law.
Note that in the above paragraph I placed the word “protects” in parentheses. That is because the ESA does not protect anything. The populations of most listed species have declined following listing. The reasons for that are various, including constant harassment by government wildlife biologists.
In Hawaii, for instance, “researchers” working for the Biological Research Division (BiRD) of the USGS have driven at least two bird species to near extinction by robbing nests and killing the chicks. The Hawaiian crow and the palila (a member of the Hawaiian Honeycreeper family) have been systematically extirpated by nest-robbing “scientists” who climb ladders to access the nests and then man-handle the baby chicks. They snatch the chicks, carry them down the ladders, poke, prod, band, weigh, and measure the chicks, and then carry them back up the ladders to replace them in the nests. Needless to say, the mother birds are totally freaked by all that and abandon the nests and chicks to starvation, or else grab the colorful band and heave it out the nest with the chick attached. The chicks then fall to their immediate deaths or to slow death on the ground, since they are too young to fly.
When the latter case occurs, the BiRD brains refers to such chicks as “jumplings” as if they jumped out of the nests themselves. They opine that the chicks, once shown the freedom of the greater world beyond the nest and the loving inter-specific concern of the Dr. Dolittle-like “scientists,” desire to fly away, albeit prematurely.
Messing with the nests induces a 99% mortality rate of the mangled chicks. That’s the only number worth reporting, but also the only number the “scientists” do NOT report. (All the foregoing is the God’s honest truth, including the “jumpling” designation. I am not making it up.)
Many other ESA listed bird species are also tortured to extinction, such as the condor and the snowy plover. The latter birds are captured and bled, and the blood is taken back to the lab for genetic testing. Why? To “prove” that some snowy plovers are a distinct population segment!
You see, snowy plovers are quite common in certain regions and uncommon in others. By demonstrating that outlying populations are (allegedly) genetically distinct, the US Fish and Wildlife Service can then assume control over birds and the habitat for the ostensible purpose of “protecting” the distinct population segment (DPS). Like vampires, the USFWS sucks the blood of the little birds to convert them to special cult status.
Two days ago, however, Federal Judge Paul L. Friedman ruled that DPS is a meaningless thing [here]. To be sure, the eco-babble phrase “distinct population segment” occurs in the legal verbiage of the ESA. But Friedman called the ESA DPS verbiage “ambiguous” and implies that it has not been and cannot be interpreted:
The DPS Policy does not qualify as a construction to which this Court can defer because the DPS Policy does not directly address the interpretive issue before the Court. The purpose of the DPS Policy is to clarify the meaning of the term “distinct population segment” and to set forth criteria for deciding whether a sub-population should be designated as a DPS. It does not address the propriety of simultaneously designating and delisting a DPS within a broader listing, and the Court finds both parties’ arguments to the contrary strained and unpersuasive. Nor may the Court look to the ESA’s implementing regulations for a Chevron-worthy interpretation. Those regulations largely track the statutory provisions discussed in part III.B and, like those statutory provisions, do not directly address the interpretive issue before the Court.
Note that if the DPS Policy cannot be used to simultaneously designate and delist, it also cannot be used to simultaneously designate and list. That juris-logical knife cuts both ways.
The DPS in question in the case Friedman ruled on was Great Lake wolves. It has been shown [see here] that Great Lake wolves are not pure wolves at all, but are crossed with coyotes. (By the way, the method used was blood sucking, the invasive scientific treatment of choice by the Vampires).
But regardless of the blood analyses, DPS means zip to the Judge. Friedman’s ruling thus calls into question the recent ruling of U.S. District Judge Donald Molloy [here] who opined that genetics are at the heart of the ESA. Of course, Molloy knows absolutely nothing about wolf genetics, as he so egregiously demonstrated. However, he did make “desirable” genetic drift in wolves the key factor in his ruling.
So now we have contrary judicial logic regarding DPS. I suggest a cage match where the judges fight to the death of one or the other, or perhaps both, to settle this question.
But first we should suck their blood to determine which human DPS’s they come from.
Or to discover, scientifically, whether they are (intelligent) human beings at all!
by Bob Z.
Bob — I think they eat their young.
And let’s not forget that wildlife biologists in Oregon are actively engaged in blasting barred owls with shotguns from the back of pickup trucks, something they refer to as a “redneck sport.”
If there is a more pestiferous species irrupting today than wyebyes, I’d like to know about it.
Trying to further understand your comments about DPS being listed and unlisted, I find Friedman’s statement contradictory.
2. Distinct Population Segments
The ESA authorizes FWS to list, delist and reclassify “species.” When the ESA was enacted in 1973, the term “species” was defined to include species, subspecies or “any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that
interbreed when mature.” Pub. L. 93-205, 87 Stat. 884, 886 (1973). Congress revised this definition in 1978 so that the definition of “species” now includes species, subspecies and any “distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S.C. § 1532(16) (emphasis added).It is common ground for the parties that because the ESA authorizes FWS to list endangered or threatened “species,” and because the term “species” is defined to include “distinct population segments,” FWS may list a distinct population segment of a vertebrate species even “when the species as a whole is neither threatened nor endangered.” Pls.’ Mot. at 5; see also Defenders of Wildlife v. U.S. Dep’t of the Interior, 354 F. Supp. 2d 1156, 1169 (D. Or. 2005). In this way, the “DPS tool” (as the parties frequently refer to it) permits FWS to “protect and conserve species and the ecosystems upon which they depend before large-scale decline occurs that would necessitate listing a species or subspecies throughout its entire range.” Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4725 (Feb. 7, 1996) (the “DPS Policy”).6 The central issue in this case is whether FWS may use the DPS tool in a different way as well: to simultaneously designate and “delist” a distinct population of animals that is thriving even though the broader species of which it is a part remains endangered (and listed as such) elsewhere.
Friedman clearly points out in his ruling, that FWS, by definition, can designate a DPS. With that authority, according to this ruling, FWS can designate a DPS even “when the species as a whole is neither threatened nor endangered.” First I find it confusing because the ESA states that in order to list a species, or again by definition a DPS, that species must be “in danger of extinction throughout all or a significant portion of its range.”
Friedman has muddied the authority of FWS. I don’t see how it can be both ways. You can’t have the authority to selectively create a DPS willy nilly.
I understand some of what Friedman is saying in this case. If as he claims, the entire lower 48 was declared a DPS (by his own definition) then he is questioning whether FWS has the authority to create DPS’s within a DPS of the same species.
As a dumb layman, I would have to say that using the very same explanation and definitions laid out by Friedman, the FWS has the authority to designate a DPS within a DPS, however, his ruling runs contrary to his own explanation. His ruling says FWS CANNOT do this. If that is the case then I would have to agree that FWS cannot designate a DPS either.
And to follow that up one more step. Friedman remanded the case back to the FWS and basically told them, if I understand the ruling, that the definition of DPS is ambiguous. Whether any of us agree or not agree, why did he rule 1) that the FWS doesn’t have the authority to name the Great Lakes wolf population a DPS after the fact? If he, by his own declaration states he can’t make a judgment because DPS is ambiguous, then why did he make a judgment? And 2) why did he place the wolf back on the ESA?
Tom — you ask some very good questions. The ruling was gibberish. Friedman was looking for an excuse to re-list, couldn’t find one in either argument presented, so he made one up.
Basically (as I interpret him) he said that he has no guidance on what to do when a DPS is declared and delisted. So he can’t or won’t delist one. Until somebody guides him. He doesn’t want to set a precedent, but in his ruling he sets one. The FWS will now have to give him some guidance, but he just ruled that they cannot, only another court can (or Congress, I suppose, although they are rudderless, too).
The FWS has repeatedly declared and then listed DPS’s. In this case they declared and delisted. Wait, says the judge, I never heard of that before. So don’t do it.
Effective result: Great Lake wolf-otes are again sacrosanct. They are not to be managed. Whatever they kill, that’s just too bad for the hunter, livestock owner, parent or relative. Wolf-ote rights now trump the rights of all other lifeforms on the planet.
This is the depths to which the American system of human rights has sunk. Nowadays “rights” are given to whatever the ruling elite desires. Basic human rights have been subjugated to random rights extended to rocks, snails, wolf-otes, etc., at the expense of humans.
This abortion of the concept of human rights ignores the fact that rights derive from an agreement among people. Rights are a form of contract. You and I give up some of our freedoms in order that neither of us may impinge on the other’s individual rights.
Example: neither you nor I have the freedom to enter into and avail ourselves of the other’s property. We each of us gave up our freedom to do that in exchange for the right to exclusive use of our individual properties.
But animals cannot make contracts. Wolves cannot agree to limit their behaviors out of respect for the rights of other animals or people. It is not that wolves refuse to enter into such contracts; they simply cannot because they are instinctive, not rational, operators.
Therefore, wolves and other instinctive, non-rational operators DO NOT HAVE RIGHTS! By the very definition of rights.
The current judiciary cannot make rational rulings about “animal rights” because animals have none. So the courts choose to make irrational, legalistic judgments based on syntax and ambiguous wording. They refuse to face the reality of the situation, that “rights” have been extended to creatures that by definition do not and cannot have rights.
The actual crux of the matter is the clash of rights among people. Does the government have the wherewithal to enter into and avail themselves of my property (via their wolf)? Obviously not, not if my real human rights are to be protected by my government (as dictated in the Constitution).
And that is the issue the judiciary (and Congress) refuse to face directly. Hence the ridiculous, self-contradictory, and gibberish-prone decisions that emanate today from misguided judges.
by Bob Z.
Tom:
I am being hopeful that Friedman is being cunning like a wolf (sorry).
That is, he is opening the door wide for wolf reintroductions in New York, Vermont, and Washington DC UNTIL the FWS begins to clearly define their own terms and stops acting as if they have a Congressional mandate to do so.
Personally, it would be music to my ears to hear wolf calls in Manhattan, or listen in on grizzlies fighting over garbage at a New Hampshire landfill. Wouldn’t that be something?
These people are both nuts and presumptuous and I am hoping that Friedman is trying to bring that to everyone’s attention. Or, he could just be confused, as you point out.
Mike:
Nice essay and analysis. It is about time some judge noticed the problem with the “environmental” promotions of DPS. Next, they may even begin to better understand the critical role of bipeds in considerations of “natural habitat.” Maybe not.
I have not actively participated in discussions of wolf and bear management under ESA, but was active with the spotted owl and marbled murrelet promotions. The agency “scientists” acted like I was joking when I publicly (and privately) asked them on several occasions:
1) Why is the human population density greater in Portland, Oregon than the Yukon (and can these geographically distinct populations interbreed)?
2) Are the biological differences between spotted owls and barred owls greater than the differences between a pygmy and a Swede?
Maybe Judge Friedman can help answer those questions — I never got a meaningful response from the promoters.
It has seemed for some time that the DPS with greatest ESA protection is wildlife biologists — followed closely by forest ecologists and environmental lawyers. It might be a good time to consider radio-collaring their young.