Wildlife and People

Programmed Failure in Wolf Relisting

One all too frequent aspect of government initiatives is that they often are doomed to failure from the get go. The design is such that the planned action is guaranteed to fall apart sooner rather than later and never achieve the putative goals. I call that “programmed failure” and the examples are numerous, from affirmative action to welfare. The cases are so numerous and ubiquitous that programmed failure might be said to be the principal function and overriding style of our modern Federal and state governments.

Programmed failure is abundantly evident in the latest “relisting” of Rocky Mountain wolves. The manner in which the US Fish and Wildlife Service put wolves back on the Endangered Species List is so fraught with contradiction and legal screw-ups that it cannot stand the light of day.

Some background: Years ago the USFWS released Canadian wolves into Montana, Idaho, and Wyoming in a (misguided) attempt to “reintroduce” the species. The wolves multiplied to huge (but expected and predicted) numbers. Over the last few years the burgeoning wolf population has decimated deer and elk herds, and wolves have taken to slaughtering sheep and cattle on private ranches. The situation is out of control.

Last March the USFWS delisted (removed from the Endangered Species List) Rocky Mountain wolves. From an analysis by Dr. Charles Kay entitled Is Delisting Rigged? [here]:

The U.S. Fish and Wildlife Service (USFWS) has announced that wolves in Montana, Idaho, and Wyoming will be delisted by the end of March 2008. According to a recent USFWS news release, wolves in the Northern Rockies were to be delisted when there was a “minimum of 30 breeding pairs and 300 wolves for at least three consecutive years. That goal was achieved in 2002, and the wolf population has expanded in size and range every year since. There are currently more than 1,500 wolves and at least 100 breeding pairs in Montana, Idaho, and Wyoming. While most sportsmen think that delisting is long overdue, a consortium of eleven environmental groups has said they will sue to stop delisting because there are not enough wolves! Apparently “wolf recovery” has been a fraud from the beginning!

The “environmental” groups did indeed sue, and last July U.S. District Judge Donald Molloy granted a preliminary injunction, throwing out the delisting of gray wolves in the Northern Rockies and order them put back on the Endangered Species list. [here]

In December the USFWS obeyed the Judge and relisted Rocky Mountain wolves [here]. The USFWS was (is) petulant about the situation, though, and their relisting regulation is a deliberate joke — programmed to fail.

Poor Judge Molloy is an idiot when it comes to wildlife ecology, and the USFWS scientists are well-aware of that. They did not appreciate Molloy’s interference in the delisting process, which was a big hassle to begin with. The USFWS went through the painful delisting process because it was the right thing to do. Judge Molloy’s wrench in the gears was most unwelcome.

Gray wolves are not endangered. The species is not on the verge of extinction. There are tens of thousands of wolves in Canada and they are doing quite nicely (from a wolf lover’s point of view). In the absence of control by humans, the species population has exploded, in Canada and Alaska as well as the US Lower 48.

Imposing a raft of killer predators on US citizens and their livestock, pets, and children is not a moral or ethical use of government power. USFWS personnel have gradually come to recognize that, in part because of the negative feedback* they have received from their fellow citizens, and in part because they are not mindless robots themselves. As scientists, and as human beings, they don’t wish to cause grief for no good reason, and “protecting” an exploding (non-endangered) population of bloodthirsty wolves is a completely unreasonable (if not purely evil) thing to do.

[*Rumor has it that certain private threats of retribution have been made. I can't say that such rumors are true, but I don't necessarily doubt them.]

But the Judge said to do it, and so the USFWS was forced to relist wolves. They did so in the most inept fashion, however, or if looked at from another perspective, in a quite adept application of programmed failure.

The main smoking gun is that the USFWS relisted most Rocky Mountain wolves as “non-essential experimental populations”. This is an esoteric issue, so let me try to explain it.

The Endangered Species Act (1973) clearly states it’s purpose as:

Sec 2(A)(4) - the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, …

Sec 2 (B) - PURPOSES.—The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.

The purpose of the ESA is to “conserve” species at threat of going extinct. Gray wolves are manifestly not at threat of extinction. The species is widespread and numerous. The USFWS knows this. That’s why they attempted to delist wolves in the first place.

And that’s why, when they relisted wolves, the USFWS put them in a little known category, “non-essential experimental populations” or NEP’s. A NEP is what it says it is, a sub-population that is not essential to conserving or protecting a species from going extinct.

Previously sub-populations of gray wolves were listed as “distinct population segments” (for more about the word games associated with sub-populations see [here]). The term “distinct population segment” (DPS) appears once in the ESA, in Sec 3 (Definitions):

(16) The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

The term DPS no longer applies, however. It was thrown out by court decisions cited in the new relisting Rule [here]. The USFWS is no longer designating wolf DPS’s.

The Courts’ rulings invalidated the three DPS designations in the April 2003 rule, including the Western DPS. Therefore, as we reinstate the special regulations at § 17.84(n) for the Yellowstone and central Idaho NEPs, we also remove from the regulation erroneous language referring to the defunct Western DPS. In addition, we are removing archaic provisions from the gray wolf special regulation at 50 CFR 17.84(i) that applied only in the immediate aftermath of the NEP reintroductions.

Instead of DPS, the USFWS is now using using the term “non-essential experimental populations”. The term “experimental populations” has an entire section in the ESA (Sec. 10, Exceptions) dedicated to it. Specifically Sec. 10 (j):

(j) EXPERIMENTAL POPULATIONS.—(1) For purposes of this subsection, the term “experimental population” means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.

(2)(A) The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.
(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species.
(C) For the purposes of this Act, each member of an experimental population shall be treated as a threatened species; except that—
(i) solely for purposes of section 7 (other than subsection (a)(1) thereof), an experimental population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under section 4; and
(ii) critical habitat shall not be designated under this Act for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species.

(3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before the date of the enactment of this subsection, for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experimental population for the purposes of this subsection and whether or not each is essential to the continued existence of an endangered species or a threatened species.

Notice (in the new Rule) that in relisting wolves the USFWS designated two NEP’s (non-essential experimental populations), one in the southern 4/5ths of Montana and all of Wyoming, and another in the southern 4/5ths of Idaho.

The NEP areas are adjacent to each other and to the wolves north of the NEP areas, which as I read Section 10 of the ESA above is a direct violation of Sec 10(j)(1). NEP areas are supposed to be “wholly separate geographically”; obviously (see the maps in the Rule) the NEP areas are not separate geographically; they are adjacent!

Furthermore, under Sec 10(j)(2)(B) the Service is supposed to determine whether such populations are essential to the survival of the species. Evidently they did that, and determined that they were NON-essential!!!

The USFWS has determined that the NEP wolves are NOT essential to preserving the species from extinction. So what are they doing writing rules about non-essential animals? That seems totally outside the purpose of the ESA.

Under 10(j)(2)(C)(i) non-essential populations are to be designated as “a species proposed to be listed”. That is not the case with the wolves. The relisting clearly calls the NEP wolves “endangered”. That was the point of the relisting. They relisted non-essential animals. It is topsy-turvy. Illogical. Inconsistent with the ESA.

The USFWS is not supposed to designate critical habitat for non-essential animals according to 10(j)(2)(C)(ii). As far as I can tell, they did not designate habitat. The wolves are where they are and no land has been set aside for them. So that is something; no wolf reserves.

However, there is also Clause 3. Clause 10(j)(3) is tricky. It refers to populations released prior to enactment of the subsection. I don’t know when the subsection was enacted or when the wolves were released. Assuming the release was prior to the subsection enactment, the USFWS is supposed to determine whether those animals are “essential to the continued existence of an endangered species”. The Service has done that; they determined that those wolves are NON-essential.

Now what? If they are NON-essential, then why are they listed? Why all the rules?

The USFWS did not act arbitrarily in this case. They had some reason for going the NEP route. They set themselves up on purpose. I think they wanted to delist wolves. The courts (Molloy) pulled that rug out from under them. So then the USFWS did the next best thing. They engineered the worst relisting imaginable.

The relisting of wolves as non-essential is programmed failure. The design carries fatal flaws. The inherent contradiction cannot stand up to public scrutiny. If the animals are non-essential, they should not be listed.

The only reason Section 10 exists is to protect candidate species while the USFWS determines the actual threat. We’re past that. The threat has been determined, and it is nil. By admission and declaration, the USFWS is saying that the listed NEP wolves are not essential to conserving the species, which by the way is not actually endangered in the first place.

If Canis lupus was going extinct, then the USFWS would never have moved to delist the species last March. Their considered opinion, based on the work of their experts, is that the gray wolf is not endangered. Most true wolf experts and wildlife population biologists agree. There is wide consensus on that point.

It is only pusillanimous judges parsing arcane language at the behest of special interest groups with hidden agendas that consider wolves “threatened”, if in fact any of those people really do. The science is quite clear; wolves are numerous and the species is doing fine.

There are some serious legal/political games going on. The true condition of the species is not at question. A spurious group seeks to inflict non-endangered wolves on an unwilling citizenry. The USFWS is caught in a bind. Their solution: programmed failure.

The relisting is fishy. It ain’t kosher. It’s one of those “doomed to failure from the get-go” operations that government is so adept at. The bungled relisting was bungled on purpose.

The next step, IMO, is to sue the bejeebers out of the USFWS for their phony relisting, on the grounds that the NEP designation is improper and proof that gray wolves shouldn’t be listed at all. And, IMO, the USFWS will welcome such a suit, and assist the Plaintiffs in making that case.

Hunters, ranchers, foresters, wildlife ecologists, affected state legislatures, rural residents, and even urban residents who have experienced first hand the misuse of Federal powers should pay attention. The iron is hot; now is the time to strike. The USFWS is begging to be sued.

It won’t take much. The rock is perched at the edge of the cliff. The relisting was designed to fail. All that’s required is a little push.