While federal agencies are responsible for the day-to-day enforcement and administration of federal laws, they are not charged with rewriting them!
However, in a compelling academic critique of the U.S. Fish and Wildlife Service's evolving enforcement of the Endangered Species Act, Sherry Enzler (University of Minnesota) and John Vucetich (Michigan Technological University) allege that the USFWS’s proposal to delist the gray wolf is, in fact, a blatant attempt to change the application of the law by repealing two of its most important tenets.
The paper, "Removing protections for wolves and the future of U.S. Endangered Species Act," published Dec. 30 in Conservation Letters, provides a clear and substantive challenge to federal proposals to delist the gray wolf.
Rewrite of species-protection law seen in move to take wolves off the U.S. list
By Ron Meador
From the journal "Conservation Letters" comes a compelling academic critique of the U.S. Fish and Wildlife Service's evolving enforcement of the Endangered Species Act, through some key rewriting of policy that might appeal to satirists like George Orwell or Joseph Heller.
The paper, published last week in the journal's "Policy Perspectives" section, is focused largely on the service's announcement that it will remove gray wolves from federal protection throughout the lower 48 states, following earlier "de-listings" in Minnesota, Wisconsin and Michigan, Wyoming and Idaho (as well as states of the northern Rocky Mountains and a scattering of others with few if any wolves).
But the authors — including Sherry Enzler of the University of Minnesota and John Vucetich of Michigan Technological University, who directs the wolf-moose population study on Isle Royale — argue that the service's reasoning in support of its decision on gray wolves changes its application of the landmark wildlife law in two ways that effectively repeal it:
- First, by redefining the Endangered Species Act's notion of natural range from the territory a species historically inhabited to the territory it currently occupies.
- Second, by deciding that human activity — especially intolerant activity — in portions of a species' range can justify reclassification of those areas under the ESA as habitat no longer suitable for threatened animals and plants.
Clear phrasing in the law
Perhaps the ESA's most important single passage is its clear, plain-language definition of an endangered species as one "in danger of extinction throughout all or a significant portion of its range" (emphasis added).
That wording may seem obvious today, but as the law moved toward passage in 1973 it was a significant and deliberate broadening from earlier species-protection laws, especially on what the paper's authors call the "SPR phrase" italicized above.
Drawing on statements from U.S. Sen. John Tunney, the California Democrat who was a key author of the ESA and the legislation's floor manager in the Senate, the paper notes his explanation that "a species might be considered endangered or threatened and require protection in most states even though it may securely inhabit others."
This, too, seems commonsensical and until recently, the paper says, the Fish And Wildlife Service considered a species' range to be both its current and historic territory — even, at times, resisting pressures to narrow its focus to current territory only.
But now the FWS seeks to redefine the gray wolf's range as the territory it currently inhabits, and to declare the rest of its former territory as "unsuitable habitat" because people will no longer tolerate wolves there.
How wolves got on list
To understand the significance of this shift, consider that if the newer definition had been in use when wolves were initially listed for ESA protection in 1978 — just five years after Congress passed the law with barely a dissenting vote — they might not have qualified.
At that point, wolves were known to inhabit only two small territories in the lower 48 states — one in the Boundary Waters Canoe Area Wilderness and adjacent Superior National Forest, the other on Isle Royale.
These remnant populations totalling a few hundred wolves, though tiny, appeared to be stable and possibly growing slightly because of wilderness protections. And at that point, of course, Isle Royale had been in their "historic range" for less than three decades.
Today, the paper asserts, federal protections have restored wolves to about 15 percent of their historic U.S. range outside Alaska. Whether an 85 percent loss qualifies as a "significant portion" of that range is, I suppose, a matter of opinion. In the opinion of the paper's authors,
Although prescribing a precise value to the SPR phrase is challenging, acknowledging egregious violations is not. Today, wolves occupy approximately 15% of their historic range within the conterminous United States. To conclude that this condition satisfies the requirement represented by the SPR phrases sets an extremely low bar for species recovery.
As for redefining "range,"
Interpreting range to mean "current range" is functionally identical to striking the SPR phrase from the ESA's definition of endangerment and narrowing the definition to being "in danger of extinction [everywhere]."
Effect on other species
It is difficult to think of a species whose conservation has inspired disputes more bitter and ceaseless than those that swirl around the gray wolf, with the possible exception of the grizzly bear in portions of the American West.
But the FWS reasoning under challenge in this paper could just have easily been applied in the past — or, more important, applied in the future — to the detriment of such recovered species as bald eagles, whooping cranes and peregrine falcons, not to mention the Kirtland's warbler, the southern sea otter, the Virginia big-eared bat and the black-footed ferret.
And it is thinking of those species, along with some 2,000 others still listed, that makes one wonder what coherent philosophy or policy of conservation can justify a redefinition of "suitable habitat" to exclude places made inhospitable by human activity.
Indeed, as the authors point out,
In most cases, species are listed as endangered because current range has been reduced by human actions. The ESA is intended to mitigate such reductions in range, not merely describe them.
As such, a sensible interpretation of range in the SPR phrase is historic range that is currently suitable or can be made suitable by removing or sufficiently mitigating threats to the species.
One always wants to hope that sound science underlies federal policy decisions in these matters. Indeed, we appear to be entering an era of changing climate in which habitats are likely to be remade by forces well beyond the science of mitigation and the capabilities of wildlife managers, regardless of the level of empowerment they may choose to find within the ESA or settled case law.
But with regard to gray wolves, climate is not the critical issue. Human persecution is. And here, too, the authors challenge FWS's fulfillment of their obligations under the ESA, in a section headed "The science of intolerance" (citations omitted):
A central tenet of the proposed delisting rule is: "the primary determinant of the long-term conservation of gray wolves will likely be human attitudes toward this predator."
Although bound by the ESA to base its listing and delisting decisions on the best available science, the FWS does not refer to any of the scientific literature on human attitudes toward wolves to justify its determination....
The proposed rule also asserts that delisting wolves at this time is critical for maintaining wolf recovery because "keeping wolf populations within the limits of human tolerance" requires humans be allowed to hunt entrap wolves. The best available science does not support this contention.
Indeed, a recent review found no evidence for the claim that the rates of poaching changed with higher quotas of legal harvest, and the recent longitudinal analysis found attitudes toward wolves were more negative during a period of legal lethal control than when the wolves were listed under the ESA … .
Ultimately, there is no empirical support for the notion that continued listing would result in a backlash against wolves.
****This article was published in MinnPost.com's Earth Journal on January 7, 2014.