Defenders of Wildlife Blog

Jason Rylander, Senior Staff Attorney

(c) USFWS

Defenders and our partners have long fought to protect the polar bear and other Arctic species that are at risk from climate change. When the oil and gas industry and the state of Alaska tried to overturn the polar bears’ listing as threatened under the Endangered Species Act (ESA), we went to federal court to defend it. And we successfully challenged a special regulation—known as a Section 4(d) rule—that denied the listed bear some of the protections that would ordinarily apply to threatened species under the ESA.

Yet last week, despite our pleas to provide the polar bear the full protections of the ESA, the U.S. Fish and Wildlife Service issued a nearly identical Section 4(d) rule that leaves the polar bear vulnerable to numerous threats.

First, the new 4(d) rule means that federal agencies don’t have to take climate change or carbon emissions into account when determining how a particular action or project will affect the bear or its habitat. It also renders a key ESA protection—Section 7 consultation—useless. Exempting greenhouse gas emissions and other factors from review in consultation seriously undermines a provision that courts have described as the “heart of the ESA.” Although the Service acknowledged when they listed the bear that climate change is the number one threat to its survival, this new rule means the FWS will not consult with federal agencies on actions that could exacerbate climate risks.

(c)Joan Cambray

Second, the new rule limits ESA protections against activities that could harm or kill polar bears, incorrectly asserting that the bear is already adequately protected under the Marine Mammal Protection Act (MMPA) and other laws. In fact, the MMPA’s protections are not the same as the ESA’s. The MMPA has an entirely different definition of what it means to “take” (or kill) an animal, and it does not contain a citizen suit provision, which is an essential tool that allows conservation groups to go to court to protect a species. Regardless, the agency may not simply rely on the presence of equivalent species protections in another statute to justify a 4(d) rule without showing that the rule actually provides a conservation benefit to the polar bear. We don’t think this rule makes that showing, and an ESA rule that fails to help the species in any way is hardly fulfilling the purpose of the Endangered Species Act.

In this decision, the Obama administration has embraced a Bush-era policy that fails to take into account the single greatest threat to polar bears, and prevents actions that could help protect the species — extremely disappointing to say the least.  The ESA alone cannot prevent climate change, but this 4(d) rule is the regulatory equivalent of burying one’s head in the sand to avoid the problem.  Put simply, the decision puts political convenience over the needs of the polar bear and sets a dangerous precedent for the protection of other species threatened by climate change and environmental hazards. We’re looking at what actions we can take to oppose this new rule, but since the Service has already spoken, it is likely that we’ll soon go back to court to defend this iconic species.

Jason Rylander, Senior Staff Attorney

Wyoming’s wolves will be getting their day in court. Today, Defenders of Wildlife — along with our colleagues at the Natural Resources Defense Council, Sierra Club, and the Center for Biological Diversity, all represented by Earthjustice — officially filed suit in federal district court in the District of Columbia challenging the Obama Administration’s decision to remove Endangered Species Act protections for gray wolves in Wyoming. Since the final delisting rule took effect on September 30, it has been open season on wolves in most of the state.

A gray wolf in Yellowstone National Park

Two months ago, as required by the Endangered Species Act (ESA), we filed a notice of intent to sue the administration if it did not reconsider its premature delisting of Wyoming’s wolves. At that time, I wrote that we would file a complaint in the U.S. District Court at the very first opportunity. That we would “ask the court to declare this rule illegal, and put wolves back on the endangered species list until Wyoming adopts a responsible management plan that ensures the continued survival and recovery of wolves in the region.”

Now the mandatory waiting period is over, and that is just what we have done. We are cautiously optimistic. Courts have thus far found every previous attempt to delist wolves in the northern Rockies to be illegal under the ESA. Unfortunately, wolves in Montana and Idaho were delisted by an unprecedented act of Congress in 2011. Since then, Montana and Idaho have allowed ever more aggressive wolf management, including liberalized hunting seasons, wolf quotas, and even trapping. Now Wyoming could be next. As of October 1, 2012, Wyoming was thought to have an estimated 328 wolves. Under the Wyoming delisting rule, however, the state has committed to maintaining just 100 wolves and 10 breeding pairs outside of Yellowstone National Park and the Wind River Reservation. In up to 85 percent of the state, wolves lack any protections and can be killed by any means at any time. In sum, Wyoming’s wolf management plan is a throwback to the days when wolves were recklessly targeted for elimination, and not a scientifically-based strategy for keeping wolves off the endangered species list.

As we wrote in the complaint we filed today, the U.S. Fish and Wildlife Service’s decision to delist Wyoming’s wolves “despite excessive human-caused mortality promoted under state management, contradicts the purposes and mandates of the ESA” and “ignores fundamental principles of conservation biology. Thus, the delisting rule is arbitrary, capricious, an abuse of discretion and contrary to the law, and must be set aside.” We hope the court agrees. As the case moves forward, we’ll be sure to keep you updated on new developments.

As with many lawsuits, progress may be slow, but that doesn’t make it any less important. Wyoming’s wolves cannot speak up for themselves — it’s up to us, with your support, to bring their voice into the courtroom, and to tell people that what is happening in Wyoming is anything but responsible wildlife management.

We’re going to court to stand up for wolves.  Today Defenders and our conservation colleagues filed a notice of intent to sue the Obama administration over its regrettable decision to remove Endangered Species Act protections for gray wolves in Wyoming.  We urged them not to do it, but last week the administration announced their intention to move forward and today the U.S. Fish and Wildlife Service published its final notice of delisting in the Federal Register.  The rule will take effect on September 30.   So now it will be up to a federal court to determine the fate of wolves in Wyoming.

Why are we taking this important step?  We should be celebrating the return of wild wolves to the region.  Indeed, the return of the gray wolf to the northern Rockies has been one of conservation’s greatest success stories, and Defenders played a big role in making it happen.  But the administration’s premature delisting of wolves in Wyoming threatens to undermine that success.

This wolf, spotted outside Wyoming’s Shoshone National Forest, is one of many that could be legally killed under the state’s management plan (Photo: Sandy Sisti, Wild At Heart Images)

Once removed from federal protection, wolves in Wyoming will be managed by the state, and Wyoming’s official wolf management plan will turn back the clock on wolf recovery.  Outside of Yellowstone National Park, in most of Wyoming, it will be legal to shoot wolves on sight.  In a smaller portion of the state, wolves can be legally hunted with proper licenses and regulations.  Only in Yellowstone itself would wolves be protected – and woe to any wolf that strays outside the park boundaries.  Put simply, Wyoming’s plan means that up to 60 percent of the state’s wolves outside of Yellowstone National Park could be wiped out.

That’s not only bad policy — we think it is illegal.  Our lawsuit will argue that the Fish and Wildlife Service violated the ESA by failing to consider how important wolves in Wyoming are to maintaining a functioning population of wolves across the northern Rockies.  Under the delisting plan, Wyoming could reduce wolf populations outside Yellowstone NP to just 10 breeding pair or 100 wolves.  This, combined with aggressive wolf management in Idaho, Montana and other areas of the northern Rockies, could bring the regional population well below sustainable levels.  Not only could this undermine regional wolf recovery, but it will undoubtedly hinder the spread of wolves to other areas in the Pacific Northwest and southern Rockies, where they remain federally protected.

We will also argue that the Service’s delisting decision is “arbitrary and capricious” — the legal term for completely irrational.  The Service previously rejected a prior Wyoming plan for failing to maintain at least 15 breeding pair in the state. A federal court also ruled that a second, nearly identical Wyoming wolf management plan failed to satisfy the ESA‘s conservation standard.  The ESA requires states to have adequate rules in place to ensure the continued conservation of the species before it is delisted.  Despite some tweaks, Wyoming’s latest management plan suffers from the same fundamental defects as its earlier plans.  It creates a broad predator zone in which wolves can be shot on sight in much of the state, and it fails to guarantee a minimum of 15 breeding pair within its borders.

So today, we filed a notice of intent to sue.  That is not yet a lawsuit.  Under the Endangered Species Act, litigants must give the government 60 days’ notice of their intent to sue over illegal agency action.  The point of this “waiting period” is to give federal agencies an opportunity to correct their errors before litigation ensues.  Alas, in most cases, the agencies decline this opportunity to right any wrongs, and litigation moves forward.

Unfortunately, the 60-day waiting period also means that Wyoming will be free to kill wolves for at least a month before our suit can even be filed.  Many wolves in the predator zone could be eliminated before we get our day in court. That’s a bitter pill to swallow, and it is a shame that the administration has taken this approach. Our hands are legally tied for now, and Wyoming’s wolves will pay the price.

At the very first opportunity, exactly 60 days from now, we will file a complaint in the U.S. District Court.  We will ask the court to declare this rule illegal, and put wolves back on the endangered species list until Wyoming adopts a responsible management plan that ensures the continued survival and recovery of wolves in the region. That’s why we are going to court.  We don’t want to return to the days when wolves were recklessly targeted for elimination, especially not after all the work that’s been done to bring them back.

Supreme Court denies yet another attempt to roll back endangered species protections

Some anti-wildlife groups just won’t take no for answer. In five previous cases, the 4th, 5th, 11th and D.C. (twice) Circuit courts have firmly upheld the nation’s interest in protecting endangered species. All five decisions were appealed to the Supreme Court, and each one has been denied.  Now the Supreme Court has rebuffed a sixth such challenge, this one from the 9th Circuit, involving a constitutional challenge to federal protection of the threatened Delta smelt.

Chinook salmon are one of the many species that benefit from protections for the threatened Delta smelt in California's central valley.

In each of these cases, wildlife opponents have claimed that protecting endangered species is a violation of the “commerce clause” of the Constitution. The Commerce Clause allows Congress to regulate three broad categories of activity: (1) channels of interstate commerce, (2) instrumentalities of interstate commerce, and (3) activities that have a substantial effect on interstate commerce. The clause gives Congress the power to regulate a wide range of issues affecting interstate commerce, including issues that affect the environment and public health.

In the latest case, agricultural groups argued that Delta smelt in California’s Central Valley could not be protected because they didn’t constitute “interstate commerce.” Defenders filed an “amicus brief” with the court supporting protections for the species, arguing that Delta smelt do affect interstate commerce. And we won. Again.

Though the imperiled fish aren’t necessarily bought and sold across state lines, its long-term survival is vital to the health of the entire ecosystem and clearly has impacts beyond the state’s borders. Protections for Delta smelt ensure there is enough water in rivers and streams, which keeps salmon populations healthy as well as myriad other aquatic and riparian species. The San Francisco Bay-Delta supports not only a robust commercial fishing industry but also countless local farmers, many of whom sell their goods outside of California.

The Endangered Species Act was signed into law by President Nixon in 1973 with strong bipartisan support. Its purpose was to prevent extinction and preserve our nation’s wildlife heritage for future generations of Americans, no matter what state they live in. Even if a species does not have immediate commercial value and does not itself cross state lines, every plant and animal is an integral part of a much larger web of life that sustains us all.

Read more on Defenders’ website and Greenwire (subscription only).

One of the most endangered mammals in North America, the black-footed ferret, and the prairie dogs on which they feed, will have one less hazard to worry about this winter.  Defenders won a court victory barring the use of Rozol Prairie Dog Bait in the states of Montana, New Mexico, North Dakota, and South Dakota.

Rozol, which contains the blood thinner chlorophacinone, causes death by internal bleeding and hemorrhaging.  Dead and dying prairie dogs can be scavenged by ferrets and raptors, which in turn become poisoned themselves.  Defenders sued the EPA for approving the use of Rozol and ignoring federal safeguards under the Endangered Species Act, the Federal Insecticide Fungicide and Rodenticide Act, and the Migratory Bird Treaty Act.

In a recent decision, a district court in the District of Columbia sided with Defenders, ruling that EPA had indeed violated the ESA by approving Rozol without first consulting with the U.S. Fish and Wildlife Service over the potential impacts of Rozol on ferrets and other threatened and endangered species.

The final order in the case bars use of Rozol in those four states, requires that Rozol’s manufacturer Liphatech, Inc., notify its distributors not to sell the product in those areas, and prohibits Liphatech from selling or distributing existing stocks in its possession without relabeling it to reflect the ban in those four states.  EPA has also agreed to complete consultation with FWS over Rozol use in 10 states to prevent accidental injury to other listed species in the West.