Saturday, May 2, 2015

Gray #wolf ruling may prevent other delisting proposals in ESA

Emily Yehle, E&E reporter
The shortnose sturgeon -- bony, brown, slightly sinister-looking -- does not often draw much public attention or controversy.

But the fish's fate recently became tied to another endangered species that elicits far more passion: the gray wolf. When a federal judge overturned the delisting of wolves in the western Great Lakes last year, she also set new parameters for when an agency can delist a so-called distinct population segment, or DPS (E&ENews PM, Dec. 22, 2014).

The Fish and Wildlife Service is appealing the case. But the ruling could affect current and future efforts to remove groups of animals from Endangered Species Act protections.

Specifically, District Judge Beryl Howell held that the Endangered Species Act does not allow agencies to create a DPS solely for the purpose of delisting it. Her ruling for the U.S. District Court for the District of Columbia draws a clear line for one use of a classification that is notorious for its ambiguity.

"I think the key issue here was you have a species in the case of the gray wolf that was listed nationwide and the service was carving out a small portion of that nationwide listing for delisting," said Tim Preso, an attorney at Earthjustice who has represented environmental groups in other gray wolf court cases. "At this point, it's clear the agency has an obligation to assess the status of these listed entities at the status they were listed."

Enter the shortnose sturgeon. Earlier this month, the National Marine Fisheries Service responded to a petition to create a new DPS for shortnose sturgeon that live in Canada's St. John River. The same petition asked for the DPS to be delisted (E&ENews PM, April 6).

While agreeing to consider the proposal, NMFS also included a warning: The gray wolf case could complicate any efforts to delist the sturgeon's not-yet-created DPS.

Angela Somma, chief of NMFS's endangered species division, emphasized that the notice was a 90-day finding. Required under ESA, such findings are very preliminary; they merely indicate whether an agency believes a petition action "may be warranted."

Because the gray wolf ruling may be appealed -- and is a single district court decision -- NMFS officials say it doesn't compel them to deny such petitions. But Somma said the ruling is "certainly something we are considering when we get petitions."

If the ruling is upheld, any decision to delist the St. John shortnose sturgeon may require a full status review for the entire species of shortnose sturgeon, Somma said.

Preso and other environmental attorneys shared that view. Howell's ruling, they say, indicates that agencies must consider the status of the species as it was listed -- and for both the gray wolf and the sturgeon, those listings are nationwide.

But Pat Parenteau, an environmental law professor at Vermont Law School, predicted that the U.S. Court of Appeals for the District of Columbia Circuit would not uphold the ruling as is.
"I think on appeal I would expect the circuit court to take a harder look at the question of whether and under what circumstances FWS can use a DPS to delist," Parenteau said. "I'm not sure the district court judge is entirely correct in ruling that is an absolute prohibition."

In the meantime, however, both FWS and NMFS may choose to tread carefully.

Whales vs. wolves

Howell's December decision sided with the Humane Society of the United States and other groups that argue the Great Lakes delisting confined gray wolves in Minnesota, Wisconsin and Michigan to a small area where hunting could lead them to the brink of extinction. It was the latest ruling in the complex debate over how FWS should handle protection for the iconic predator.

The ruling on delisting a DPS was narrow, in that it only addressed decisions that couple a DPS classification with a delisting proposal. Agency officials and experts say that is rare. A DPS, an administrative term that generally indicates a discrete population within a species, is more often created for protection under ESA, with a tailored recovery plan.

But a recent proposal from NMFS to delist most humpback whales could be an example of how to delist some populations of a species while keeping ESA protections for others.

The proposed rule would reclassify the entire whale species -- which lives all around the world -- into 14 distinct population segments. It would then only keep four listed under ESA: two as endangered and two as threatened (Greenwire, April 20).

Ralph Henry, a senior attorney at the Humane Society, said the organization was still looking at the humpback proposal. But he said the facts surrounding wolves and whales are different.

"It strikes me that at least there what they're trying to do is deal with the whole listed entity at once," Henry said. He cited a footnote in Howell's ruling that highlights a solicitor's opinion from the Interior Department that lays out the possibility of delisting an entire species over its entire range and "simultaneously" proposing to list any DPS for that species that remain endangered or threatened.
NMFS's Somma echoed that reasoning, citing the agency's belief that it has the ability to identify all the species' distinct population segments and then propose how each should be listed under ESA.

"From our Office of General Counsel's perspective, we have the ability to do as we propose here," Somma said. "We did a comprehensive status review that looked at humpback whales globally."
As for FWS, it hasn't yet had to make such considerations, but spokesman Gavin Shire acknowledged the possibility.

"At this point we have no delisting proposals that would be affected by this court decision," he said. "In theory, it is possible it could impact a future delisting proposal down the line."

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