Academic journal article Washington Law Review

Piecemeal Delisting: Designating Distinct Population Segments for the Purpose of Delisting Gray Wolf Populations Is Arbitrary and Capricious

Academic journal article Washington Law Review

Piecemeal Delisting: Designating Distinct Population Segments for the Purpose of Delisting Gray Wolf Populations Is Arbitrary and Capricious

Article excerpt

Abstract:

The Endangered Species Act (ESA) protects species that are in danger of extinction "throughout all or a significant portion of its range." After thirty-three years of protection by the ESA, the gray wolf is gradually recovering from the brink of extinction. Pressure to remove protections for existing gray wolf populations has mounted as human interests have increasingly conflicted with the gray wolf's resurgence. Most courts have defined the phrase "significant portion of its range" in the ESA to mean the historical range of a species. This interpretation is consistent with the legislative history of the ESA and the historical listing practices of the United States Fish and Wildlife Service (FWS). However, the FWS has recently designated and delisted discrete and significant gray wolf populations-termed "Distinct Population Segments" (DPSs)-based on the gray wolf's current range. This Comment argues that the FWS's action of designating and delisting these gray wolf DPSs is contrary to the ESA. By limiting the delisting analysis to the area within the DPS boundaries, the FWS circumvents the statutory requirement to assess threats to the gray wolf throughout its historical range. Moreover, this action does not comport with the DPS Policy promulgated by the FWS and National Oceanic and Atmospheric Administration (NOAA) Fisheries. Therefore the FWS's action of designating and delisting these gray wolf DPSs is arbitrary and capricious.

The Endangered Species Act (ESA) provides substantial protection to species listed as threatened or endangered under the Act.1 However, local residents may carry negative attitudes toward listed species, arising from both real and perceived restrictions on private activity under the ESA.2 Listed predators may receive especially hostile treatment from local communities.3 Critics have also noted the low number of recovered species and have argued that the ESA's benefits do not outweigh the societal costs.4 As a result, once a species appears to recover, the United States Fish and Wildlife Service (FWS) may face significant pressure from residents in recovery areas to delist the species and remove ESA protections.5

The FWS has sought to address these criticisms by increasingly emphasizing recovery and delisting.6 This new emphasis has resulted in the delisting of several species in recent years,7 including the delisting of gray wolf distinct population segments (DPSs), which are discrete and significant populations of the endangered gray wolf.8 On February 8, 2007, the FWS published a Proposed Rule that simultaneously designated the Northern Rocky Mountain Population of gray wolves as a DPS and delisted it.9 The FWS also published a Final Rule that simultaneously designated the Western Great Lakes population of gray wolves as a DPS and delisted it.10

This Comment argues that the FWS's designation and delisting of the Northern Rocky Mountain DPS and the Western Great Lakes DPS is arbitrary and capricious. These latest delisting efforts manipulate the definition of "significant portion of its range"11 and limit the delisting analysis to the gray wolfs current range rather than the historical range.12 This tactic circumvents the statutory requirement that the FWS comprehensively assess the species' historical range in its delisting decision,13 and is also contrary to the purpose of the Services' DPS Policy.14 The delisting of the Northern Rocky Mountain DPS and the Western Great Lakes DPS is therefore arbitrary and capricious.

Part I of this Comment introduces the history and success of gray wolf recovery under the ESA, as well as recent delisting efforts. Part II outlines the basic statutory framework of the ESA's listing process, focusing on section 4 and its listing and delisting requirements. Part III discusses the interpretation of the statutory phrase "significant portion of its range." Part IV analyzes case law holding DPS designations that bypass the ES A's statutory requirements to be arbitrary and capricious. …

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