Legal Updates

Wyoming Wolves De-Listed Under the Endangered Species Act

On March 3, 2017, the D.C. Circuit reinstated the rule promulgated by the United States Fish and Wildlife Service (“FWS”) in 2012 to remove the Northern Rocky Mountain gray wolf in Wyoming from the endangered species list under the Endangered Species Act (“ESA”). Defenders of Wildlife v. Zinke, –F.3d.–, 2017 WL 836089 (D.C. Cir. Mar. 3, 2017).  The FWS has been trying to turn over the management of the wolves in Wyoming to the state since 2008, but has faced several reversals at the hands of the courts.  This decision reverses a 2014 ruling of the U.S. District Court, District of Columbia that vacated the FWS 2012 rule delisting the gray wolf.

Although the D.C. District Court agreed with the FWS finding that the species had recovered and did not overturn FWS’ determination that the gray wolf is not endangered or threatened within a significant portion of its range, it found fault with the state plan to guarantee the required baseline wolf population.  The District Court denied the delisting of the gray wolf because FWS did not require Wyoming to meet a specific numeric buffer above the baseline population but instead relied upon representations in a “non-binding” Addendum to its wolf management plan.  On appeal the D.C. Circuit disagreed, and held that nothing in the ESA demands that level of certainty.  The Court stated that:

[FWS’] decision to delist in the absence of legal certainty is compatible with the ESA’s requirement for monitoring of the species after delisting ‘for at least five years’ and its emergency provisions authorizing the [FWS] to take immediate action to ensure the delisted species does not become threatened or endangered again.

The Court of Appeals concluded that the state established an adequate regulatory framework under the confines of the ESA and the FWS exercised its judgment reasonably in concluding that Wyoming’s management plan would adequately protect the gray wolf population after delisting.  “The record demonstrates that the [FWS] reasonably and adequately responded to concerns about the reliability of Wyoming’s management plan,” Judge Judith Rogers, a Clinton appointee, wrote for the court.

The decision to delist the gray wolf in Wyoming followed a decision by the FWS to delist the species in the neighboring states of Montana and Idaho in 2011.  The gray wolf was originally listed as an endangered species in Wyoming in 1973.  In April 2016, FWS reported that the gray wolf population is “robust” and spreading.  At the end of 2015 the number of wolves in Idaho, Montana and Wyoming far exceed the recovery targets of 150 wolves per state.  Idaho has 786 wolves, Montana 536 and Wyoming 382.  The wolf has moved west into Oregon (110) and Washington (90).

The slow pace of de-listing has long been a complaint in the states and in Congress.  The court’s ruling approving FWS reliance in a de-listing decision on efforts that are not legally binding may become significant if the Trump administration moves to try and delist other species that states argue have recovered.

Read an interesting post-script answering the question of the impact of Yellowstone’s wolves on area elk here.