2020-2021 Endangered Species Law Student Writing Competition Winner.
Throughout human history, the threat of predators has significantly advanced human development. The fear of death influenced society in ways that have largely been forgotten in the current era of urban life; however, there remains in each of us primal, animal instincts that occasionally reemerge because of ancient triggers. One of those triggers, possibly the oldest survival mechanism in a human being, is the feeling of dread upon hearing the howling of unseen wolves. This paper highlights the gray wolf’s historic colonial era extermination, the measures taken to prevent its extinction in the continental United States, the subsequent attempts at delisting the wolf from the Endangered Species Act (ESA), and the most recent efforts to ensure the gray wolf’s continental decline.
The gray wolf, or canis lupus, has been intertwined with almost every single culture that has existed on Earth. The Romans’ origin myth held that its founders, Romulus and Remus, were rescued from death by a she-wolf and would go on to found the city of Rome; the oldest surviving Mongolian text describes the origins of the Mongol people as being born from a wolf and a doe; the Turkic foundation myth involves a she-wolf becoming pregnant by a boy who survives a battle, giving birth to half-wolf children that ruled the Göktürks.
Not all the myths involving the wolf are positive, however; perhaps the most famous wolf in mythology is Fenrir, in Norse mythology the son of Loki destined to bring on Ragnarök, the end of the world. The Christian Bible repeatedly refers to wolves in a negative light, e.g., describing false prophets as wolves in sheep’s clothing.
The wolf has featured prominently in folklore as well, usually as a villain to the protagonist character. The wolf is seen in some of the most famous and important folktales of all time, including “The Boy Who Cried Wolf,” “Little Red Riding Hood,” “The Three Little Pigs,” “Peter and the Wolf,” “The Wolf and the Seven Young Goats,” and hundreds of other stories and forms. With such widespread disdain and villainous interpretations of the wolf, it is little surprise that they are virtually extinct in Europe, having been exterminated over the centuries.
In North America, gray wolves formerly occurred from the northern reaches of Alaska, Canada, and Greenland to the central mountains and the high interior plateau of southern Mexico. However, since their arrival, the European colonists and their American descendants used poison, trapping, and shooting, which removed the gray wolf from more than 95 percent of its range in the 48 conterminous states. Before colonization, there were an estimated 250,000 to 2,000,000 gray wolves roaming the continental United States. By the time the wolf was protected by the ESA of 1973, only a few hundred remained in the lower 48 continental states of the United States, almost exclusively in Minnesota.
At the behest of President Richard Nixon and mounting pressure for environmental action, the ESA was signed into law. Congress stated that the purpose of the ESA was to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved and to provide a program for the conservation of such endangered species and threatened species. To that end, Congress declared that conservation of endangered species and threatened species is the policy of Congress and all federal departments and agencies.
In 1974 the eastern timber wolf (Canis lupus lycaon), the northern Rocky Mountain wolf (Canis lupus irremotus), and the red wolf (Canis rufus), were listed as endangered in the lower 48 states and Mexico. In 1978, the U.S. Fish and Wildlife Service (FWS) revised its prior list, replacing the various subspecies of wolf with the entirety of the gray wolf species. This revision also altered the status of the gray wolf to be endangered in all lower 48 states except Minnesota, where the gray wolf was listed as threatened.
Recovery under the ESA is not defined by statute. Instead, the ESA provides the FWS the authority to create recovery plans to conserve species. These plans are required to have a description of site-specific management actions to conserve the species, objective criteria to determine whether the species should be removed from the list, and estimates of the time required and the cost to carry out those measures.
The FWS prepared a Recovery Plan for the Eastern Timber Wolf in 1978 (the Plan), which was revised and finalized in 1992. The Plan determined that the gray wolf population would be recovered when the survival of the wolf in Minnesota was assured and at least one viable population outside of Minnesota and Isle Royale in the contiguous 48 states was established. When the Plan was passed, there were approximately 1,550 to 1,750 wolves in Minnesota, 45 to 60 wolves in northern Wisconsin and the Upper Peninsula of Michigan, and an additional 13 or 14 wolves in Isle Royale National Park, Michigan.
The Plan provided two requirements for the gray wolf: (1) large tracts of wild land with low human densities and minimal accessibility by humans; and (2) the availability of adequate wild prey, largely ungulates and beaver. The Plan claims that there was sufficient suitable habitat in Minnesota, Wisconsin, and Michigan to achieve these criteria.
In 1994, the FWS established an “experimental population” of gray wolves in Yellowstone National Park, primarily in Idaho, Montana, and Wyoming. This created a second distinct population segment (DPS) of gray wolves and allowed the animal to begin recovering from its destruction.
By the time of the most recent delisting of the gray wolf in January 2021, the FWS estimated approximately 6,100 gray wolves in the continental United States across two large population sectors, which includes 4,200 gray wolves in the Great Lakes area and approximately 1,900 gray wolves in the Western United States.
The FWS attempted to delist the gray wolf five times prior to the current delisting. The first attempt came in 2003, when the FWS attempted to simultaneously create three DPS groups (western, eastern, and southwestern) and then change the western and eastern segments’ statuses from endangered to threatened. The FWS subsequently proposed a rule to completely delist the gray wolf in Minnesota, Wisconsin, and Michigan, removing all ESA protections. However, the finalized rule and the proposed 2004 rule were both nullified in 2005 by Judge Robert E. Jones of the U.S. District Court for the District of Oregon. This ruling completely reversed any delisting attempts by the FWS regarding the gray wolf and reinstated the original endangered status for the lower 48 states (except Minnesota, which returned to its previous threatened status).
The FWS would attempt to delist the gray wolf again in 2007, 2008, twice in 2009, and 2011. Environmental organizations sued the FWS over these delisting attempts, almost all of which contested the delisting based on the original issue that the FWS faced in 2003, that the agency was creating a DPS and then delisting that DPS in the same rule, and every delisting attempt was overturned by a court.
In April 2011, President Obama signed into law the Department of Defense and Full-Year Continuing Appropriations Act (DDCAA) passed by Congress. Included in the massive DDCAA is section 1713, which reads: “Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule.”
This codified as law the April 2009 Final Rule delisting the gray wolf as an endangered species in Idaho, Montana, Oregon, Washington, and Utah. This was the first time Congress legislatively delisted an endangered species, and the results were virtually instant: the 2011–2012 hunting seasons in Montana and Idaho resulted in 166 wolves killed in Montana and 379 wolves killed in Idaho.
On March 15, 2019, the FWS published yet another proposed rule delisting the gray wolf, this time across the entire lower 48 states (except for the Mexican wolf, which remains endangered). The proposed rule stated that the best available scientific and commercial information indicated that the gray wolf was recovered under their definition and thus was no longer protected under the ESA.
The FWS determined that the gray wolf’s population was recovered and stable enough to justify the delisting, and on November 3, 2020, the rule was finalized. Despite scientists admonitions that wolves are functionally extinct in most of their historic range, something the FWS admits is true, the FWS only considers the range of the animal at the time of listing, not historic range, and thus by their definition the gray wolf was recovered.
The FWS’s conclusion was that because the gray wolf was not threatened or endangered throughout some of its range, it would not be an endangered species or a species in threat of extinction. The FWS claims that the amount and distribution of occupied wolf habitat currently provides large core areas of sufficient size and with sufficient prey to support the recovered wolf populations. The final rule once again delisting the gray wolf went into effect on January 4, 2021, stripping them of federal protections across the continent.
On January 14, 2021, the Defenders of Wildlife (Defenders) in conjunction with several other environmental protection organizations filed a lawsuit against the FWS and the Secretary of the Interior, David Bernhardt. The Defenders allege that the FWS justifies delisting the gray wolf nationally because a limited geographic region’s (the Midwest) wolf population is stable. The Defenders claim that the FWS rule ignored available historical wolf habitat and disregarded relatively new wolf populations outside the Midwest as “colonizers” unnecessary to the survival and recovery of wolves in the Midwest.
Additionally, the Defenders point out that the FWS must include the already-listed entity for delisting; yet the delisting rule considered the Minnesota population together with the lower 48 populations and delisted “the gray wolf entity,” claiming that “neither of the listed entities is a DPS.” The Defenders also argue that the FWS limited its focus to the wolf populations in the Midwest, ignoring the southern Rockies and Northeast completely and dismissing the Pacific Northwest populations as unimportant to wolf recovery. Finally, the Defenders allege that the delisting rule was based upon the 1992 Recovery Plan targets, a 25-year old plan that does not account for the best available science in 2020. As of August 26, 2021, there have been several procedural filings, including several intervenors, amicus briefs, and time extensions. One attempt to dismiss the lawsuit has been denied, and both sides of the suit have filed pending motions for summary judgment.
The gray wolf, once the most common predator on the continent, again faces extermination by its oldest nemesis: mankind. Generally, the political stance regarding the gray wolf seems to be leaving protections to the states, but this is a death sentence. Minnesota’s state management plan allows for up to 40% of wolves to be killed, while the Wisconsin and Michigan plans allow for up to 70%. On February 15, 2021, the governor of Montana faced public backlash after he killed a wolf that wandered out from Yellowstone onto a private ranch. On May 7, 2021, Idaho passed into law a bill that allows for the reduction of approximately 90% of its wolf population, and on August 20, 2021, the Biden Administration declared its intent to keep the Trump-era decision in place, signaling that the FWS will continue in its crusade against the wolf.
Thus, given its long history of vilification on behalf of both state and federal governments, and entire cultures and religions, the future seems bleak for the gray wolf. It seems likely that the FWS will sooner rather than later be compelled to return the wolf back to its protected status due to the various states’ hunting regulations and kill quotas. The one thing that is certain is that the gray wolf has officially been thrown to the wolves and it does not seem like it will ever escape the jaws of injustice.
