Two late September actions put gray wolves in the continental United States back on the Endangered Species List, reports the Wildlife Management Institute. On September 23, the U.S. Fish and Wildlife Service (FWS) reinstated protections for wolves in the Northern Rockies following the July decision by a federal court to place an injunction on the delisting.

A week later, a federal judge reversed the FWS 2007 decision to delist wolves in the western Great Lakes region based on their designation as a "distinct population segment." The series of setbacks calls into question efforts by the FWS to turn wolf management authority over to states.

The FWS decision to reinstate Endangered Species Act (ESA) protections for the Northern Rockies wolf population will allow the agency to re-evaluate its science while states amend their management plans. These two issues were specifically cited in Judge Donald Molloy's decision to place an injunction on the delisting process and halt proposed state wolf hunts. Said FWS spokeswoman, Sharon Rose, "We definitely have a lot of wolves out there, but we need to address some of [Molloy's] concerns in a way that people feel comfortable with."

In the second of the one-two punch, U.S. District Judge Paul Friedman sided with the Humane Society and several other environmental organizations that claimed that the FWS decision to delist the western Great Lakes population as a "distinct population segment" failed to consider the species' recovery nationwide. The decision halts new state policies allowing landowners to kill wolves attacking livestock or pets. State hunting programs also would be affected, although none of the three states had created a wolf-hunting season since delisting.

Wolves occupy only 5 percent of their historical range in the continental U.S., and the groups that brought the suit contend that the nearly 4,000 wolves in Michigan, Wisconsin and Minnesota cannot be considered separately from other populations. Judge Friedman stated that it was unclear whether the FWS interpretation of the ESA permitted the delisting of a distinct population segment even if that same sub-population was listed as a distinct population segment in the first place. The court concluded that the ESA is "silent or ambiguous with respect to the specific issue" before it.

The long-term implications of the decision could impact the interpretation of the law that has been used for other populations of wildlife and whether the FWS will be allowed to use the law for delisting as well as listing sub-populations. In 1978, the ESA was amended to include "any distinct population segment of any vertebrate species of fish or wildlife." This was interpreted by the FWS and National Marine Fisheries Service in 1996, through a joint policy to clarify the definition finding that, to constitute a distinct population segment, a population must exhibit "discreteness in relation to the remainder of the species and significance to the species to which it belongs." They further defined discreteness and significance within the policy.

Substantial case law has been built since the FWS defined a distinct population segment to support including listing populations under this classification, as well as to argue why a population should not be considered distinct. It was a judge's decision in March 2008 to classify bald eagles as a distinct population segment that placed the Sonoran Desert bald eagle in Arizona back on the Endangered Species List after it was delisted in 2007. Two other district courts supported the FWS interpretation that it has the "flexibility to list, downlist, or delist discrete and significant populations, even though the conservation status of the species may differ elsewhere."

In his opinion, Judge Friedman spelled out the future course of action for the FWS: "On remand, the agency should bring its expertise and experience to bear on the question of whether the ESA permits it to use the DPS tool in the fashion it has proposed. At a minimum, the agency must explain how its interpretation of the statute conforms to the text, structure and legislative history of the ESA; how its interpretation is consistent with judicial interpretations of the ESA (if there are any on point); and how its interpretation serves the ESA's myriad policy objectives. It must also address any legitimate concerns that its interpretation could undermine those policy objectives."??? (jas)