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Rewrite of species-protection law seen in move to take wolves off the U.S. list

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.

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.

Or, as Orwell might have it, a creature's natural habitat is natural no longer once the creature is driven out. For his part, Heller might see it as another Catch-22: The ESA exists to protect plants and animals from eradication by humans, except in those areas where humans prefer to eradicate them.

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.

* * *

The paper, "Removing protections for wolves and the future of U.S. Endangered Species Act," was published Dec. 30 in Conservation Letters and can be purchased under multiple options here.

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Comments (5)

Human persecution of wolves

Thanks, once again, for a critically important, balanced, and evidence-based article- this time on wolves and their increasingly perilous existence. Above all, thanks for clearly acknowledging that it's human persecution that is the problem here. I remain baffled at the hate and vicious cruelty wolves suffer at our species' hands, but I look forward to learning more about the "science of intolerance" you reference here.

What species are on the list isn't the primary issue

Obviously, the space allotted to those animals is the most important factor.

If you hope for more wolves, their available habitat must be able to supports those numbers.

The first effort should be to increase safe areas for them to exist in. Then you can allow for a higher wolf population to fill that area.

Humans working to cultivate and populate every inch of land is the problem, and that is the very difficult battle that must be fought. To say "stop hunting wolves" yet do nothing to increase their available habitat is lazy and hypocritical. A worthless non-effort doing nothing to better the situation for the animal.

Integrated Wildlife Management

Luke Sonner: of course, our preservation of wilderness habitat is critical to our preservation of wildlife; but of course it's not the only critical element. Other critical elements include human adaptation to wildlife (in residential, recreational, and agricultural areas), pollution control, civil engineering, and as Nancy Gibson pointed out in her comment here, our awareness of and our high regard for biological diversity.

wolves

You missed one critical point and that is the slashing and burning of the USFWS budget. $62 million of that decreasing budget has been spent on wolves in the last decade with the majority of it spent on litigation. Meanwhile who is writing and fighting for the Sprague's pipit living on the edge in the oil and gas surge in North Dakota and the other 2000 species that lack the wolf's megafauna status. I don't want the unintended consequence of the ESA act to be a fight over the definition of suitable habitat while salamanders, frogs, bats and numerous birds perish ignoring their place in the ecological web.

I have fought hard for wolves for 30 years but in that fight the sad state of our biological diversity has become ever more evident.

wolves off of endangered list

IMAGINE SITTING AT YOUR DINNER TABLE ..YOURSELF AND YOUR MATE, YOUR CHILDREN , LETS SAY FOUR OF THEM, YOUR BROTHER AND SISTER AND THEIR MATES.....ALL READY TO SPEND A LOVNG HOLIDAY TOGETHER......BAM BAM BAM, THERE ARE GUNSHOTS , YOU SEE YOUR BROTHER AND TWO OF YOUR CHILDREN FALL TO THE FLOOR FROM THEIR CHAIRS...YOUR HEART WRENCHES, THE CRIMINALS COME IN THROUGH THE DOOR, BAM BAM BAM , YOUR PARTNER AND TWO MORE CHILDREN , PLUS YOUR SISTER GO DOWN......SIT WITH THAT SCANARIO FOR A MINUTE, FEEL THE PAIN, THE BEWILDERMENT, THE SORROW COURSING THROUGH YOUR BODY?....THIS IS WHAT A WOLF PACK GOES THROUGH WHEN THEY LOSE ONE MEMBER OR SIX MEMBERS, THEY HURT, THEY MOURN THEY F..E..E..L!!! THE LOSS....I COULD SIT HERE AND SPOUT OFF A BUNCH OF STATISTICS, I COULD DEBETE THE AMOUNT OF CATTLE LOST TO WOLF DEPRADATION...BUT I WILL NOT , FOR YOU IN YOUR HEARTS KNOW THAT THE MAJORITY OF INFO THAT YOU GET FROM THE NWFG + FWS PEOPLE, OR THE CATTLEMANS ASSOC, OR SCIENTISTS OR CORPORATIONS YOU HAVE IN YOUR POCKET IS WRONG, IS WRONG OR SLANTED AGAINST THE WOLVES, YOU KNOW THAT TRAPPING, AND BEING LEFT ALIVE AND HURTING IN THOSE TRAPS FOR 72 HRS IS WRONG, YOU KNOW THAT SITTING OUTSIDE A NAT'L PARK WITH RECORDINGS OF WOLF PUPS IN DISTRESS, LURING WOLVES OUT OF THE PARK ...IS WRONG, YOU KNOW...THAT HOUNDING,....THE ACT OF HUNTING DOWN WOLVES WITH A PACK OF DOGS ..TO BE TORN APART AND TORTURED ...PAINFULLY AND MERCILESSLY IS WRONG.....YOU KNOW THAT THROWING A CAN OF GAS INTO A WOLF DEN WITH PUPS TO MURDER THEM IS WRONG....YOU KNOW...THAT FLYING LOW IN A PLANE AND RUNNING DOWN WOLVES TILL THEIR EXHAUSTED ...IS WRONG.....SIT STILL WITH THESE SCENARIOS....SIT WITH THE VISUALS IN YOUR HEART, IN YOUR MINDS EYE ...AND HONESTLY TELL ME THAT THIS IS MORAL, THAT TEARING A FAMILY APART, AND DECIMATING IT IS OKAY...THESE BEAUTIFUL CREATURES, THAT BRING IN MORE REVENUE TO THE PARKS ALIVE.....ARE BEING MURDERED FOR THE BETTER PART OF THE YEAR.....THEY ARE IN NO WAY FULLY RECOVERED.....THERE ARE VERY FEW ABOUT, LESS THAN YOU MAY THINK...IT IS WRONG TO ALLOW THEM TO BE REMOVED FROM THE ENDANGERED LIST, IT IS WRONG TO ALLOW THEM TO BE HUNTED FOR SPORT, FOR TROPHY, NOT FOOD FOR YOUR TABLE, NOT TO SAVE LIVES....THERE IS NO TANGIBLE REASON FOR ANY OF WHAT IS GOING ON WITH THE MEXICAN WOLVES, THE GRAY WOLVES , THE RED WOLVES TO CONTINUE...PLEASE EDUCATE YOURSELVES FULLY, BEFORE YOU MAKE ANY DESCISION, THE AMOUNT OF PEOPLE FIGHTING FOR THESE MAGNIFICENT CREATURES, THAT LOVE, HURT, MOURN, AND LOVE EVEN MORE.....CAN'T BE WRONG, THE OUTRAGE YOU HAVE BEEN HEARING , LOUD AND CONSISTENTLY SINCE THE QUEEN OF THE LAMAR WAS BRUTALLY RIPPED FROM HER PACK....IS TRUE LOVE FOR THESE CREATURES, WE HAVE A VOICE THAT NEEDS TO BE HEARD , YOU NEED TO LISTEN TO TRUE WILDLIFE ADVOCATES AND THEIR EDUCATED, HEARTFELT WORDS....PLEASE DO NOT DELIST THE WOLVES, PLEASE MAKE HUNTING AND TRAPPING THEM ILLEGAL, THAT IS NOT MANAGING THEM....IT IS MURDER THANK YOU