ESA delisting dilemma could keep wolves in the system

Jan 13, 2014

The Endangered Species Act (ESA) rolled over 40 years of activities in the midst of heated debates on delistings and new listings of various species. In December of 1973, Congress passed and President Richard Nixon signed the ESA.

Celebrations of ESA’s 40 year milestone were minimal, in part because of the continued controversy over a flawed law. Intended to conserve species and habitat, ESA has recovered less that 2 percent of the approximately 2,100 species listed as endangered or threatened since its 1973 inception. In addition to its apparent lack of success, it has wreaked havoc on industries, providing more benefit to environmental activist coffers than anything else.

The original ESA law was a little more black and white, with landowners only having to deal with the regulations involving animals or plants that were labeled as “endangered.” But in the late 70’s, the Carter administration extended the regulations to include “threatened.” The effect has left many landowners devastated.

On top of the ever-growing list, the legal battle to get an animal off has become nothing short of a political nightmare.

In the interview, which aired Aug. 23, 2013, U.S. Rep. Cynthia Lummis shared with Wyoming Public Radio, “Our goal is not to repeal the Endangered Species Act. Far from it. Our goal is to make the Endangered Species Act work. We have a law where only 1 percent of the species that have been listed have actually been delisted. To me, that indicates a law that is failing in its ultimate goal which is to list species, re cover them, and then delist them.”

Take for example, Cedar City, UT, where the prairie dogs live the high life, and a delisting of the destructive rodents seems to not be in the cards.

Though it looks much like the other species of prairie dog common across the plain states and into the eastern foothills of the Rocky Mountains, the Utah prairie dog is protected because it is the only species that exists on the western side of the mountain range. The town is in the midst of a battle with vacant lots being infested with the critters, and owners not able to build or sell, and even the golf course is slowly losing out to the prairie dogs, with holes and bare patches taking over the greens.

The agency, in a news release announcing the subtle changes in policy, said rules prohibiting the taking of Utah prairie dogs were necessary to “prevent widespread illegal killing by frustrated farmers.” Killing or trapping a Utah prairie dog can carry a fine of $10,000 and possible jail time.

Which brings us to the ongoing battle of wits surrounding the powers that be that control the wolf delisting option verses the big bad ranchers who are hoping for a much needed solution to the growing population.

According to the U.S. Fish and Wildlife Service (FWS), at the end of 2002, the Northern Rocky Mountain gray wolf population achieved all of its recovery goals, but despite that, the debate has continued.

In June of 2013, FWS proposed to remove the gray wolf from the list of threatened and endangered species throughout most of the lower 48 states—making an exception only for Mexican wolf subspecies.

The Public Lands Council (PLC), NCBA and other affiliates submitted comments on the FWS’s recent proposed rule to delist the gray wolf.

Under ESA, to be classified as endangered, the species must be in danger of extinction throughout all or at the very least a significant portion of the population’s range. For the gray wolf, that’s not the case. The gray wolf has made a successful recovery since being listed under the ESA over three decades ago, occupying an extensive range in more than 40 countries, according to NCBA. In many of these areas, specifically across Alaska, Canada and the Pacific Northwest, the wolf faces very few threats. As of now, the gray wolf is listed using the Canadian border to define its natural habitat, regardless of its immense and extensive population north of the border.

Consequently, as the service has recognized in the proposed rule, the group of animals listed in 1978 “does not represent a valid ‘species’ under the Act.” Under these circumstances, it would be unlawful for the service to allow the current gray wolf listing to remain effective, further validating the decision to delist the wolf.

Additionally, the service’s comprehensive review found that the current listing for gray wolf, which was developed 35 years ago, erroneously included large geographical areas outside the species’ historical range. Furthermore, the review found that the current gray wolf listing does not reasonably represent the range of the only remaining population of wolves in the lower 48 states.

There is no basis on which to conclude that Pacific Northwest gray wolf population is eligible to be classified as endangered because this group of animals is not a distinct population segment, it is not a “species” within the meaning of the ESA and cannot be listed, according to PLC.

The proposed rule also deals with a subspecies, the Mexican wolf, which had a historic range that included much of Mexico and a portion of the southwestern United States (southern and central Arizona and New Mexico and southwestern Texas).

The service suggests shifting resources to maintain protection and expand recovery efforts for the Mexican wolf subspecies in the Southwest, where, based on the best available science, it remains endangered. In 1998, the first wolf was released into the wild in the Blue Range Wolf Recovery Area. For the past 15 years the population has ranged from 40-75 wolves. The goal set in the 1982 Recovery Plan was 100 wolves in the Blue Range Recovery Area. The recovery program put in place by the FWS and cooperating agencies for the Mexican wolf has operated under section 10j of the ESA. This gave the Mexican wolf in the southwest the legal status of “experimental population,” which was critical to allow agency and state personnel to handle wolves, treat problem wolves, and use lethal removal. Today wolves in Arizona and New Mexico are still considered an “experimental population” and are governed by the 10j despite many legal challenges by radical special interest groups. While the latest proposed rule would set a plan in motion similar to what industry has faced with the gray wolf, our comments reiterate the need for the Mexican wolf to remain an experimental population. This would ensure states continue to have a say in how FWS manages the Mexican wolf.

But of course, what appears to be common sense, has another side that appears to include powerful critics and deep pocketed activists.

According to a group of scientists, the proposed rule to delist the gray wolf endangers other species.

As written, scientists assert, the proposed rule would set a precedent allowing FWS to declare habitat unsuitable for an endangered animal because a threat exists on the land—the exact opposite of the service’s mandate to impose regulations that reduce threats against imperiled species.

The FWS has “conflated threats with habitat suitability” by stating that U.S. land currently unoccupied by wolves is now unsuitable because humans living in those regions won’t tolerate the animals, according to the lead scientist on the project.

“The Fish and Wildlife Service is supposed to detail what the threats are and if they’re substantial enough, they’re supposed to list a species and put in place policies to mitigate the threats,” said Jeremy Bruskotter, Associate Professor in The Ohio State University’s School of Environment and Natural Resources and lead author of the paper.

“Here, they’re saying that they recognize the threat of human intolerance and instead of mitigating the threat, they’re just going to say the land is unsuitable.”

Were this rule to stand, he said, “Anytime the U.S. Fish and Wildlife Service finds that something is in the way of a species’ recovery, they can just say the habitat is unsuitable for the species and disregard the threat altogether.”

The scientists’ paper is published online in the journal Conservation Letters. — Traci Eatherton, WLJ Editor