In June 2013, the U.S. Fish & Wildlife Service (FWS) proposed removing, or “delisting,” the gray wolf, canis lupus, from the List of Endangered and Threatened Species currently protected under the ESA, while simultaneously recognizing wolves found in the southwestern United States as a distinct Mexican gray wolf subspecies, canis lupus baileyi, which would remain protected. See 78 Fed. Reg. 35,664 (proposed June 13, 2013). The proposal has been met with considerable criticism, garnering the most public comments ever submitted on an ESA issue.

The proposal raises questions of whether the gray wolf has sufficiently recovered, the appropriate use of species and subspecies designations, and the wolf’s historic range. Observers question whether FWS’s proposed actions are consistent with the ESA and whether FWS has fulfilled its statutory obligation to utilize the “best available science” in making its determinations.

FWS claims that the proposed action is based on the “best available scientific and commercial information,” arguing that the species has recovered and no longer warrants ESA protection. FWS also posits that the gray wolf was not historically present in much of the eastern United States, a marked departure from FWS’s long-standing assertions to the contrary. The research on which FWS relied in making these determinations has been heavily contested by the scientific community. See, e.g., Letter from Sixteen Scientists with Expertise in Carnivore Taxonomy and Conservation Biology to Sally Jewell, Sec’y of the Interior, at 1 (May 21, 2013).

Listing and Delisting Criteria Under the ESA

The ESA has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley v. Hill, 437 U.S. 153, 180 (1978). Its purpose is clear—to provide a robust program for the conservation of threatened and endangered species and the ecosystems upon which such species depend. 16 U.S.C. § 1531(b). Species are protected, or “listed,” pursuant to notice-and-comment rulemaking. 16 U.S.C. § 1533. The ESA broadly defines “species” to include any subspecies of wildlife and any distinct population segment (DPS) of a species that interbreeds. A species is considered “endangered” if it “is in danger of extinction throughout all or a significant portion of its range,” 16 U.S.C. § 1532(6), and “threatened” if it “is likely to become [endangered] within the foreseeable future,” 16 U.S.C. § 1532(20).

Once listed under the ESA, “take” of the species is prohibited, critical habitat may be designated, and conservation measures must be implemented to facilitate recovery of the species. While the Secretary of the Interior is responsible for implementing the ESA, broad authority is delegated to FWS for those species occurring on land. Indeed, FWS’s primary purpose is to recover listed species to the point where ESA protections are no longer needed.

FWS is required to base listing and delisting determinations “solely on the basis of the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A) (emphasis added). A listed species may be delisted on the basis of recovery only if such data demonstrate that the species is no longer endangered or threatened. Factors to consider must include actual or threatened destruction or alteration of habitat or range; overutilization of the species; disease or predation; adequacy of existing regulatory mechanisms; and other natural or manmade factors affecting the species’ continued existence. The regulations also mandate that FWS consider state-level protection efforts when making listing and delisting determinations. As a result of these criteria, fewer than thirty species—slightly more than 1 percent—of all ESA-listed species have been delisted on the basis of recovery since the ESA’s inception.

The ESA mandates that a species be restored to a significant portion of its range (SPR) before delisting may be considered on the basis of recovery. “Range” has long been interpreted to mean a species’ historic range, including—but not limited to—the range currently occupied by the species. See, e.g., Defenders of Wildlife v. Norton, 258 F.3d 1136, 1141 (9th Cir. 2011). This interpretation is strongly supported by the ESA’s legislative history. As the Ninth Circuit explained, this policy represented “a significant shift” from prior laws which considered a species endangered only when “threatened with worldwide extinction.” Id. at 1144 (quoting H.R. Rep. No. 412, 93rd Cong., 1 Sess. (1973)).

Beginning in 2007, however, FWS attempted to constrain this long-standing precedent through a formal opinion issued by the Solicitor of the Department of the Interior. David L. Bernhardt, Dep’t of Interior, Solicitor Opinion M-37013, The Meaning of “In Danger of Extinction throughout All or a Significant Portion of its Range” (Mar. 16, 2007). The 2007 M-Opinion redefined SPR language in the ESA “to mean that a species is an endangered species only when it is in danger of extinction throughout a portion of its current range.” Id. at 2. In practice, a species could be denied ESA protection under the “current range” interpretation in a situation where consideration of the species’ historical range would potentially result in listing. After the reformulated SPR policy was admonished by two federal district courts, the Department of the Interior formally withdrew the M-Opinion in May 2011. Hillary C. Tompkins, Dep’t of Interior, Solicitor Opinion M-37024, Withdrawal of M-37013—The Meaning of “In Danger of Extinction Throughout All or a Significant Portion of its Range” (May 4, 2011).

In December 2011, however, FWS published a draft policy setting forth anew its interpretation of this key statutory language. See 76 Fed. Reg. 76,987 (proposed Dec. 9, 2011). The resulting final policy resembles the withdrawn M-Opinion with regard to its emphasis on current range. See 79 Fed. Reg. 37,578 (Jul. 1, 2014). It defines a species’ “range” as “the general geographical area within which that species can be found at the time FWS . . . makes any particular status determination,” including, inter alia, seasonal habitat. Id. at 37,609. The policy states that “[l]ost historical range is relevant to the analysis of the status of the species, but it cannot constitute a significant portion of a species range.” Id.

The Gray Wolf’s Dwindling ESA Protections

The gray wolf has had a long and complicated regulatory history, beginning with the Endangered Species Conservation Act of 1969—precursor to the ESA—which protected gray wolves at the subspecies level. Pub. L. 91-135, 83 Stat. 275 (1969). When the ESA was enacted in 1973, certain gray wolf subspecies were among the first listed. In light of new information regarding gray wolf taxonomy, FWS reclassified the gray wolf as a single species, canis lupus, in 1978. 43 Fed. Reg. 9,607−10 (Mar. 9, 1978). The 1978 rule declared the gray wolf endangered at the species level throughout the contiguous United States and Mexico, with the exception of Minnesota, where wolves were classified as threatened. The 1978 rule explained that the gray wolf’s historic range included most of the contiguous United States and Mexico, but that the gray wolf had been relegated to a tiny fraction of its former range due to “widespread habitat destruction and human persecution.” Id. at 9,607. The rule acknowledged that wolves might venture beyond state lines and recognized subspecies boundaries, necessitating federal protection for the entire species.

Over the past decade, FWS has been steadily chipping away at the 1978 listing decision, with the apparent goal of delisting gray wolves in much of the northern and eastern United States. FWS’s recent actions include, inter alia, recognizing the Northern Rocky Mountain (NRM) and Western Great Lakes (WGL) gray wolf populations as distinct population segments and then delisting them. 76 Fed. Reg. 81,666 (Dec. 28, 2011) (delisting WGL DPS); 76 Fed. Reg. 25,590 (May 5, 2011) (delisting NRM DPS).

Such rulemakings have removed federal protections for gray wolves in numerous states. In response to concerns regarding the implications of such a disparate approach, FWS announced a three-pronged National Wolf Strategy in 2011, which purports to (1) create a “cohesive and coherent approach to addressing wolf conservation needs, including protection and management”; (2) ensure that regulatory action for one wolf population does not adversely affect other wolf populations; and (3) state the wolf’s range. 76 Fed. Reg. 26,086 (proposed May 5, 2011). The current proposed rule, however, drastically revised the gray wolf’s range analysis to remove all or part of twenty-nine eastern states from the gray wolf’s accepted historic range, see 78 Fed. Reg. at 35,666, thereby fashioning a potential basis for delisting eastern gray wolves.

The Proposed Rule

In formulating the proposed rule, FWS relied exclusively on a single study—the controversial Chambers study, written by four of FWS’s own scientists and published in an FWS publication. See generally id. (discussing Steven M. Chambers, Steven R. Fain, Bud Fazio, & Michael Amaral, An Account of the Taxonomy of North American Wolves from Morphological and Genetic Analyses, 77 N. Am. Fauna 1, 16−22 (Oct. 2013). This is surprising, given FWS’s acknowledgment of the “complex and contentious history” of wolf taxonomy and admission that Chambers includes a mere “general evolutionary interpretation” of the wolf’s history in the United States. Id. at 35,669-71. Chambers argues that three (possibly four) subspecies of gray wolf exist in the United States and contends that the gray wolf’s historic range excluded much of the eastern United States. In the proposed rule, FWS concedes that “many experts reject” subspecies classifications entirely due to their “often arbitrary nature” and acknowledges “long-held differences of opinion” regarding the gray wolf’s historic range. Id. Paradoxically, FWS unequivocally accepted Chambers’ conclusions regarding species and subspecies designations, as well as approximate historic ranges for North American wolves and used these controversial findings as the basis for the proposed rule.

The proposed rule appears inconsistent with FWS’s own Peer Review Policy. The policy requires FWS to utilize independent peer review to ensure that final decisions are based on the best available science as reviewed by recognized experts in the relevant field. 59 Fed. Reg. 34,270 (Jul. 1, 1994). In certain circumstances, including disagreement over the methodology used or the need for clarification of a scientific question, the Peer Review Policy may require additional review before a final decision is rendered.

In light of FWS’s heavy reliance on its own study, the peer review process is especially important in this matter. FWS initially selected the consulting firm AMEC to oversee the independent peer review. However, three scientists initially selected by AMEC for the panel were removed after signing a letter addressed to Secretary of the Interior Jewell, which criticized the proposed rule and urged FWS to reconsider the delisting proposal. See Letter from Sixteen Scientists, supra. The letter at issue—authored by sixteen scientific experts in the fields of carnivore taxonomy and conservation biology—denounced FWS’s proposal as a distortion of the available scientific data, including inaccurate representations of the scientists’ own research. FWS suspended the AMEC review when evidence surfaced showing that FWS had directed AMEC to remove the three scientists from the peer review.

A new peer review was subsequently conducted by the National Center for Ecological Analysis and Synthesis (NCEAS). NCEAS, Review of Proposed Rule Regarding Status of the Wolf under the Endangered Species Act (Jan. 2014). The NCEAS review was led by a panel of renowned experts in wolf genetics and taxonomy, pursuant to strict peer review guidelines. Panelists sharply criticized the scientific and methodological underpinnings of the proposed rule and were alarmed by FWS’s overreliance on the Chambers study. They determined that the proposal’s conclusions were based on Chambers’ selective use of scientific literature and outdated understanding of wolf taxonomy, resulting in inaccurate taxonomic classifications and unsubstantiated assertions of the wolf’s historic range. The panel unanimously concluded that the proposal is not based on the best available science.

The NCEAS panelists decried Chambers’ subspecies designations as preconceived and biased, noting that Chambers summarily dismissed a new, “especially critical” understanding of subspecies taxonomy, opting instead to rely on decades-old information. Id. at 14. The panel explained that the traditional view of wolf taxonomy posits that the eastern wolf is a subspecies of the gray wolf, not a distinct species. Yet, Chambers asserts that “a unique non-protected wolf species,” c. lycaon, existed on the east coast. Id. at 15. Panelists noted the considerable lack of scientific support for Chambers’ conclusion that the eastern wolf is a distinct species from the gray wolf and found the data wholly inadequate to rule out alternative taxonomic hypotheses. A Congressional Research Service (CRS) report stressed the “considerable significance” of the scientific debate concerning gray wolf taxonomy, explaining that the current proposed taxonomic changes would effectively delist any remaining eastern wolves. M. Lynne Corn, et al., Cong. Research Serv., RL32992, The Endangered Species Act and “Sound Science,” at 7 (Jan. 23, 2013).

The NCEAS panelists found Chambers’ historic range analysis lacking in convincing evidence. They highlighted considerable debate surrounding the existence of gray wolves on the East Coast, noting that data concerning eastern gray wolves is neither well-reviewed nor well-analyzed. Panelists observed that, while Chambers asserts that gray wolves did not historically inhabit the eastern United States, the study cites no supporting evidence for this claim, instead restating the study’s ill-received contention that a distinct wolf species inhabited the eastern states. The NCEAS panel also noted that Chambers failed to even consider the possible co-existence of multiple wolf species or hybrid species in the East and ignored relevant fossil evidence indicating the likely presence of gray wolves in the eastern United States. The panelists’ criticisms were echoed by outside observers. Public comments submitted by conservation groups cited evidence that the gray wolf’s historic range spanned more than two-thirds of the United States, consistent with studies by population biologists showing that wolves presently occupy a small fraction of their historic range.

Such findings raise another red flag—that despite the agency’s withdrawal of M-37013, FWS only considered the wolves’ current, rather than historic, range in formulating the proposal. This is evident from FWS’s argument that wolves have not repopulated much of their historic range “due to continued lack of human tolerance to their presence,” rationalizing that this renders such areas “unsuitable” habitat. 76 Fed. Reg. at 35,685. Experts have staunchly disputed FWS’s contention, noting that empirical evidence and the best available scientific data contradict FWS’s claim that human intolerance renders habitat unsuitable. See, e.g., Jeremy T. Bruskotter, et al., Removing Protections for Wolves and the Future of the U.S. Endangered Species Act (1973), 7 Conservation Letters 401 (2014). When considering delisting a species on the basis of recovery, FWS must also determine that adequate state regulation exists to ensure the continued survival of the species. This is important because delisting effectively turns over authority for management of the gray wolf to individual states, often with disastrous consequences for the species. In many states, ranchers and hunters have long balked at wolf protections and clamored for delisting. To date, in almost every area where wolves have been stripped of their ESA-protected status, state-level protections have been hard fought and rarely won, with wolf hunting seasons readily established in six states.

FWS requires states to submit wolf management plans for FWS approval prior to delisting. This is meant to ensure the adequacy of state regulatory mechanisms. Yet, the sharp drop in wolf populations in many of these states in just a few years indicates that there may be deficiencies with such FWS-approved wolf management plans, as well as FWS’s Strategy overall.

Given the tendency of wolves to venture beyond state lines and the recent appearance of wolves in areas from which the species had been previously extirpated (such as wolf sightings in California for the first time in decades), it is also concerning that the proposed rule fails to account for these migrations. FWS does not consider the possibility that Mexican gray wolves, who would remain protected under the proposal, may wander outside of their designated boundaries and into areas where wolf hunting is legal. This has the potential to jeopardize the protected populations and the species as a whole.

While ESA decision making should be based solely on the best available science, many are concerned that political factors infiltrate FWS decision making. One prominent example concerns the improper involvement of Julie MacDonald, Deputy Assistant Secretary of FWS from 2004 to 2007, in a number of key ESA-related decisions. Investigations by the Department of the Interior Office of the Inspector General (OIG) revealed that MacDonald misused her position by improperly reshaping the Endangered Species Program’s scientific field reports, provided industry lobbyists with confidential agency documents, and potentially impacted ESA decisions affecting numerous species. Office of Inspector Gen., Dep’t of Interior, Investigative Report on Allegations against Julie MacDonald, Deputy Assistant Sec’y, Fish, Wildlife, and Parks (Mar. 23, 2007). A Government Accountability Office audit of FWS decision making revealed that the OIG review’s limited scope may have exempted certain questionable ESA decisions from scrutiny and also found that other agency officials had improperly influenced certain ESA decisions. This is especially disconcerting given the time line of recent gray wolf delisting actions following decades of staunch protection. A 2012 CRS report specifically included another recent gray wolf proposal among the latest ESA controversies, noting allegations that the underlying science was “insufficiently rigorous or mishandled” by FWS. Eugene H. Buck, et al., Cong. Research Serv., R41608, The Endangered Species Act (ESA) in the 112th Congress: Conflicting Values and Difficult Choices, at 8 (June 14, 2012).

Litigation Risk of Proceeding with the Current Proposed Rule

Courts review ESA delisting decisions under the Administrative Procedures Act (APA). 5 U.S.C. §§ 701−08 (2012). A court may “hold unlawful and set aside agency action, findings and conclusions” if the action is found to be, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this deferential standard, a rulemaking is considered arbitrary and capricious if the agency relied on factors beyond its statutory authority, “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm, 463 U.S. 29, 43 (1983). An agency may not rely on “substantial uncertainty” to justify agency action. Id. at 52.

Despite the deference accorded to agency decisions under the APA and State Farm, there have been several cases—some involving wolf delisting actions— in which challengers have prevailed in the ESA context. Federal courts in Montana, for example, have found FWS wolf delisting actions arbitrary and capricious twice in the last decade. See, e.g., Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1228 (D. Mont. 2010); Defenders of Wildlife v. Hall, 565 F. Supp. 2d 1160, 1174 (D. Mont. 2008).

A decision rendered earlier this year foretells a suboptimal outcome for FWS should it proceed with the proposed rule. In Defenders of Wildlife v. Jewell, No. 12-1833 (ABJ), slip op. (D.D.C. Sept. 23, 2014), the court vacated and set aside FWS’s 2012 Wyoming delisting rule (Wyoming rule) as arbitrary and capricious, thereby reinstating ESA protections for Wyoming’s wolves. The plaintiffs alleged, inter alia, that Wyoming’s gray wolf management plan was inadequate under the ESA and that FWS’s approval of that plan was arbitrary and capricious. Id. at 15. Prior to promulgation of the final Wyoming rule, FWS commissioned an independent peer review panel to assess the adequacy of the Wyoming plan. Id. at 10 (citing 77 Fed. Reg. at 55,543). While three scientists construed the plan as based on the best available science, the remaining panelists found the plan’s vague and undefined minimum population buffers to be problematic. Id. An addendum to the state’s plan did little to assuage these concerns. Despite such criticism, FWS proceeded with the rulemaking. Id. at 12.

Siding with the plaintiffs, the district court found that FWS was obligated to mandate that Wyoming maintain more wolves than the number proposed by the plan, as a condition of delisting. Id. at 21. Addressing FWS’s reliance on the voluntary management measures contained in the Wyoming plan addendum, the court held it was arbitrary and capricious for FWS to rely on such “nonbinding and unenforceable representations” in assessing the adequacy of the state’s plan. Id. at 20−22. In reaching this holding, the court noted the peer review scientists’ disapproval of the Wyoming rule, and the addendum’s failure to address these concerns.

As in Jewell, the proposed delisting rule has been subject to independent peer review. In both instances, scientists selected for peer review described FWS’s proposed actions as “problematic,” risky, and based on information insufficient to adequately support a delisting determination. In finalizing the Wyoming rule at issue in Jewell, FWS asserted the adequacy of its proposed rule, dismissing the peer review scientists’ concerns. Given such factual similarity to the current proposed rule, it is likely that a court would similarly hold FWS’s actions with regard to the proposed rule arbitrary and capricious.

A court may also find fault with the proposed rule based on scientific uncertainty, particularly the lack of evidence and uncertainty regarding gray wolf taxonomy and historic range insufficient to support FWS’s proposal. In Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011), the Ninth Circuit addressed a challenge to FWS’s removal of the Yellowstone grizzly bear population from the ESA’s threatened species list. The court considered, inter alia, whether FWS had “rationally supported” its conclusion that the likely decline of a key grizzly food source would not threaten the grizzly population. Id. at 1032. Noting the well-documented correlation between availability of the food source and survival of the grizzly, and the dearth of information regarding the grizzly’s ability to survive without the food source, the court held that FWS “failed to articulate a reasonable connection between the science it relied upon and its conclusion.” Id. at 1024. The court reasoned that FWS merely declared the existence of scientific uncertainty and failed to elucidate why such uncertainty “counsels in favor of delisting now, rather than, for example, more study.” Id. at 1028.

Greater Yellowstone Coalition does not bode well for FWS if it proceeds with the proposed rule. The NCEAS peer review experts unanimously concluded that FWS’s proposed delisting is not based on the best available science and highlighted glaring insufficiencies with Chambers’ methodology and analysis. During the public comment period, interest groups submitted similar criticisms of the proposal, highlighting deficiencies in the data relied upon by FWS and the scientific uncertainty regarding gray wolf taxonomy and the species’ presence in the eastern United States. Considerable concern has also been expressed over FWS’s reconceptualization of the wolf’s range, with observers noting that the newly defined range fails to comport with the ESA’s mandate to restore the gray wolf to a significant portion of its historic—rather than current—range.

A court may also find fault with the proposed rule by delving into the potential political influences underpinning the delisting decision. In Western Watersheds Project v. FWS, 535 F. Supp. 2d 1173 (D. Idaho 2007), plaintiffs challenged FWS’s rejection of a listing petition for the greater sage-grouse, where FWS had concluded that listing was not warranted. The district court held that FWS acted arbitrarily and capriciously by failing to base its decision on the best available science and allowing Julie MacDonald to exert undue influence on the decision-making process. In light of evidence of improper involvement of agency officials over numerous ESA-related decisions, and FWS’s influence over the initial AMEC peer review for the proposed rulemaking at issue, a court may find that politics crept into FWS’s decision making, such that the current delisting proposal was not based on the best available science—but rather by external, political factors.

Given such precedent, the high-risk designation NCEAS panelists ascribed to the proposal is an apt descriptor of FWS’s litigation risk if it chooses to move forward with the current proposal. If FWS does not withdraw or substantially revise the current proposed delisting rule, it will likely face similar challenges—and similar results—with the delisting rule being remanded or vacated and set aside as arbitrary and capricious.