Distinct Legal Confusion
There are plenty of wolves in the Lower Forty-Eight. There are thousands of wolves from Oregon to Wisconsin. The are tens of thousands more wolves in Canada and Alaska. Wolf populations are growing. The species is not in danger of going extinct.
Despite those obvious and agreed upon facts, and despite the fact that the US Fish and Wildlife Service has been attempting to delist wolves (remove the species from the Endangered Species list) since 2002, Federal judges have refused to allow a complete delisting.
In 2008 U.S. District Judge Donald Molloy overturned the delisting of gray wolves in the Northern Rockies and put them back on the Endangered Species list [here]. Then he partially lifted his injunction and in 2009 the USFWS delisted wolves in Idaho and Montana, but not Wyoming [here].
The USFWS also delisted Great Lakes wolves at that time, but later in 2009, under another court order, the USFWS was forced to re-listed wolves in Great Lake states [here].
Then the usual plaintiffs sued everybody, or intervened in someone else’s lawsuit, and the Rocky Mountain wolf delisting case went back to Judge Molloy. He listened to oral arguments yesterday from all factions — you need a scorecard to keep track of who is opposed to whom and why.
The latest case revolves around Wyoming and whether Wyoming wolves need to remain listed, and if so, why aren’t all Rocky Mountain wolves listed. Part of the legal arguments centered on the question of “distinct population segments” (DPS’s).
Judge hears arguments in federal wolf case
By MATT VOLZ (AP), June 15, 2010 [here]
MISSOULA, Mont. — A federal judge heard arguments Tuesday on whether gray wolves in Montana and Idaho should be protected once more under the Endangered Species Act and whether those states can ensure the species won’t be wiped out under their management.
Defenders of Wildlife, the Greater Yellowstone Coalition and other wildlife advocates sued the federal government after the U.S. Fish and Wildlife Service named wolves in the Northern Rockies a distinct population segment and removed them from the endangered species list in April 2009.
The Fish and Wildlife Service turned over wolf management to Montana and Idaho wildlife officials but left federal endangered species protections in place for wolves in Wyoming, where state law is considered hostile to the animals’ survival.
Gray wolves were listed as endangered in 1974, but following a reintroduction program in the mid-1990s, there are now more than 1,700 in the Northern Rockies.
The population is one of the most well-studied and best-understood in the world, and the conclusion 15 years after reintroduction is that wolves will continue to survive under state management, Justice Department attorney Mike Eitel told U.S. District Judge Donald Molloy. …
Congress meant for the government to have flexibility in protecting species under the Endangered Species Act, and both the Bush administration and the Obama administration have approved the wolf decision by the Fish and Wildlife Service, Eitel said.
But Molloy told Eitel he was having trouble accepting that the Endangered Species Act allows wolves in Wyoming to be separated from the rest of its distinct population segment.
“I understand the practical argument, I understand the political argument. Those two things are very, very clear. But what I don’t understand is the legal argument. That’s not very clear,” the judge said. … [more]
Molloy: Why protect wolves in Wyoming, but not Montana and Idaho?
By ROB CHANEY, the Missoulian, June 15, 2010 [here]
Government wolf managers have either run roughshod over the Endangered Species Act or successfully returned a threatened animal to healthy numbers, lawyers told a federal judge on Tuesday. …
[Idaho state attorney Steven] Strack added there were strong examples where the U.S. Fish and Wildlife Service split animal recovery efforts along state lines. In particular, he said the 9th U.S. Circuit Court of Appeals approved separate management plans for Arizona and California in the case of an endangered horned lizard - which inhabits both states. … [more]
The convoluted reasoning from the wolf-lovers was that Wyoming cannot be a DPS under the law, and Wyoming wolves are endangered, and therefore all Rocky Mountain wolves are endangered and should be relisted.
The convoluted reasoning from Idaho and Montana was that wolves are not endangered anymore in those states, but still are in Wyoming, so Wyoming wolves should be declared a DPS and only those wolves should remain on the endangered species list.
The argument from Wyoming representatives was that their wolves are no different from wolves in the other two states, none of which are endangered and so all Rocky Mountain wolves should be delisted.
Great Lakes wolves were not part of this case, for convoluted reasons.
Much of the convolution is predicated by the rather bizarre concept of a “distinct population segment”.
I’m no lawyer, but I do know how to Google. My research in the etherworld has yielded the following findings:
The term “distinct population segment” appears once, one time only, in the ESA, to wit:
Section 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.
That’s it. So how did the concept get to be such an important aspect of wildlife management and the law?
It turns out that DPS (the concept) was most recently articulated in a 1996 joint USFWS-NMFS policy (61 FR 4722: February 7, 1996) [here].
There are three criteria to be considered in a DPS declaration: discreteness, significance, and status. That is:
* 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.
Wyoming wolves are not discrete from other Rocky Mountain wolves in any sense of the word. The same wolf can cross a state border six times a day, or more. Wolves move around. The USFWS dumped Canadian wolves in Yellowstone (that’s in Wyoming) in 1995. Now they, or their offspring, have moved into Montana, Idaho, and even traveled as far as Oregon. Same wolves, same genes, same physical, physiological, ecological, or behavioral factors.
By the way, in case you didn’t know, Wyoming has no international borders.
So Wyoming wolves flunk the first criterion. End of story. The other criteria depend on the satisfaction of the first, and it is not satisfied. For educational purposes, however, we offer the next criterion
* Significance
If a population segment is considered discrete under one or more of the above conditions, its biological and ecological significance will then be considered in light of Congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPS’s be used ‘‘ …sparingly’’ while encouraging the conservation of genetic diversity. In carrying out this examination, the Services [USFWS and NMFS] will consider available scientific evidence of the discrete population segment’s importance to the taxon to which it belongs. This consideration may include, but is not limited to, the following:
1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon,
2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon,
3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or
4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. Because precise circumstances are likely to vary considerably from case to case, it is not possible to describe prospectively all the classes of information that might bear on the biological and ecological importance of a discrete population segment.
There is nothing unusual or unique about Wyoming wolf habitat. It is the same as wolf habitat in Idaho and Montana. If you were blindfolded and dumped out of an airplane into Rocky Mountain wolf habitat, and then un-blindfolded, you would not know which state you were in. Nor do the wolves.
Wyoming wolves are no more endangered than wolves in the other states. However, if Wyoming wolves all fell over dead tomorrow, the taxon would still persist. Same taxon as elsewhere. See “Discreteness” above.
Wyoming wolves are not “the only surviving occurrence” of the taxon. Same wolves, same genes, all over Idaho and Montana. No barriers to wolves moving in and out of Wyoming. Wyoming wolves are non-different and not separated.
There is a third criterion, which doesn’t come into play because the first two are not satisfied. But here it is anyway:
* Status
If a population segment is discrete and significant (i.e., it is a distinct population segment) its evaluation for endangered or threatened status will be based on the Act’s definitions of those terms and a review of the factors enumerated in section 4(a)of the Act. It may be appropriate to assign different classifications to different DPS’s of the same vertebrate taxon.
Since Wyoming wolves are not discrete and not significant, “Status” does not apply. But for educational purposes we give you the meat of section 4(a)of the ESA:
(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
None of those factors apply to Wyoming wolves. Wyoming wolf habitat is not threatened by destruction, Wyoming wolves are not overutilized, the existing regulatory mechanisms are adequate, and no other natural or manmade factors affect the continued existence of Wyoming wolves.
All that is moot anyway, since Wyoming wolves are not discrete or significant.
For that matter, neither are Great Lakes wolves.
Wolves move around. They are not bound to any one spot. They breed like canines everywhere, which is to say like dogs, which is to say promiscuously. Dogs are famous for that. So are rabbits, but dogs rank right up there.
So the wolf genes flow around and travel hundreds of miles in a season, and have found their way into Oregon, Washington, Colorado, Utah, and possibly Illinois, and who knows where by next year, because wolves move great distances when they feel like it.
There are no distinct populations of wolves. The lines are blurred and indistinct. The taxon is all one big incestuous family. Coyote and domestic dog genes are showing up in wolves. Some wolves, like the Mexican wolf in the Southwest, is more dog than wolf, and the “red wolf” of North Carolina is more coyote than wolf. Some coyotes, like those in Pennsylvania and New York, have wolf genes [here].
Dogs will be dogs. This truth is well-known, and has been well-known since humans and dogs began co-habitating in the Stone Age.
The entire concept of “distinct population segments” is a legal one, not a biological one, when it comes to wolves. For that matter, the entire concept of “endangered” is more legal than biological.
The law is screwed up vis “endangered” animals. We don’t need that law (the ESA). It has done more harm than good. The hand-wringing over species extinctions is mostly misplaced emotions and science fraud, but the ESA is not a solution to anything, real or imaginary.
A great myth has developed over extinction, in partial response to Darwin’s theory, which shook religious foundations and left an atheistic society bereft of spiritual purpose. The crocodile tears over alleged species extinction is a substitute for formerly comforting religious superstitions.
The global warming alarmist hysteria is another manifestation of the same thing, i.e. spiritual starvation and quasi-religious substitution. There are a lot of lost people running around.
Be that as it may, the ESA is not a fix for what ails, and distinct population segments are complete folly. Whether the judge can see all that is extremely doubtful. He never has before, and it’s not really his job to be rational. His job is the law, rational or not, and in the case of the ESA, rationality does apply.
