Good news for wolves keeps rolling out.
The Great Lakes wolves have won reprieve in federal court, preventing the Bush’s Fish and Wildlife Service’s (FWS) attempt to delist:
Court rules against U.S. in Great Lakes wolf case – AP
US District Judge Paul Friedman ruled in favor of wolf advocates who argued that the Fish and Wildlife Service can not use Distinct Population Segment’s (DPS) as tools for delisting to delist the Great Lakes wolves at this time.
FWS had argued that the ESA mandated its action given its interpretation of Congress’s revision of the term “species” within the Act to include Distinct Population Segments. Given wolves within the DPS had recovered, FWS argued, and its conflation of “species” with ‘DPS’, it was incumbent upon agency to delist.
Both parties agreed that the FWS can list populations of species using Distinct Populations Segments to help prevent a species in its entire range from incurring significant declines within a sub-population that would necessitate a broader listing across its entire range. However, the judge decided that it was too ambiguous an interpretation of the ESA for FWS to delist a healthy sub-population while that species’ entire population remains imperiled even if that same sub-population was listed via DPS.
Working to demonstrate the ambiguity of FWS’s interpretation, wolf advocates argued that because Congress did not extend the DPS tool to invertebrate species, it was extending greater value to mammals, birds and fish. If in Congress’s revision of “species” to include the DPS tool it demonstrated an intent of its inclusion to protect its heightened value for vertebrates, that showed the intent of the revision was to protect, i.e. to list species, not an intent to use the tool to remove protection.
Given FWS failed to demonstrate that its interpretation of the ESA was unambiguous, it is responsible for bringing “its experience and expertise to bear in light of competing interests at stake” (PDK Laboratories, Inc. v. DEA), a heftier burden than if it had demonstrated to the judge strict and clear compliance with the language in the first place :
On remand, the agency should bring its expertise and experience to bear on the
question of whether the ESA permits it to use the DPS tool in the fashion it has proposed. At a
minimum, the agency must explain how its interpretation of the statute conforms to the text,
structure and legislative history of the ESA; how its interpretation is consistent with judicial
interpretations of the ESA (if there are any on point); and how its interpretation serves the ESA’s
myriad policy objectives. It must also address any legitimate concerns that its interpretation
could undermine those policy objectives.