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Hail to the ESA: Why the Decision to Deny Protection to Wolverines Was Misguided

wolverine

By Sydney Hofferth*

Wolverines hold a special place in the American imagination. Known as the “devil bear” in Native American legend, wolverines are thought to embody the characters of bullies, tricksters, lucky animals, and signs of good fortune.[1] Not only is there a comic book character modeled after the wolverine, it serves as a mascot for sports teams across the country – most importantly, as the mascot of the University of Michigan (Go Blue!). An animal that is at once fierce, mysterious, elusive, and tenacious, the wolverine is the largest member of the weasel family.[2]

After a 20-year legal battle the U.S. Fish and Wildlife Service (FWS) announced in October, 2020 that they will not extend protection to wolverines as a threatened or endangered species under the Endangered Species Act (ESA).[3] In 2016, Judge Dana L. Christensen of the Federal District Court of Montana questioned the FWS’ decision to withdraw a proposed rule to protect the wolverine, and criticized it as being a politically motivated, instead of science-driven, decision.[4] I agree with Judge Christensen’s assessment of the withdrawal of the rule, and I think the October decision to decline protection altogether is mistaken.

Governing Laws

ESA

The FWS is one of two agencies in charge of implementing the ESA. The ESA was designed to protect “threatened and endangered plants and animals and the habitats in which they are found.”[5] Once a species is listed as threatened or endangered, the FWS has authority to ensure that any federal or private actions do not “result in the destruction or adverse modification of designated critical habitat[s]” of listed species.[6] In order for a species to be protected under the ESA, it has to be listed by rule as either threatened or endangered.

APA

The APA governs the breadth of how courts can rule in response to agency decisions. It states that “a court can only negate agency action if it is found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’”[7] This means that, as long as there is “a reasonable basis for the agency’s decision,” the court cannot overturn the agency’s action.[8]

Reviewing courts can use the following guideline to determine whether or not an agency’s actions were arbitrary or capricious: “the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. …Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.”[9]“‘Abuse of discretion’ has been defined as what happens when a court’s decision is ‘manifestly unreasonable, or exercised to untenable grounds, or for untenable reasons.”[10]

Wolverines

According to Earthjustice, “after a century of trapping and habitat loss, [less than 300 wolverines live] in the Lower 48 today.”[11] They live at high elevations “in small, fragmented populations in Idaho, Montana, Washington, Wyoming, and northeast Oregon.”[12] Female wolverines only have one to two kits each year, and they rely on dens they dig in the snow for birthing and protecting their young. They need snow at least five feet deep to dig these dens – it provides protection from both predators and the cold temperatures.[13] Because of their reliance on snow, wolverines live in arctic and subarctic regions of the world, gravitating towards areas with persistent snow cover.[14]

The Push for Wolverine Protection

In July of 2000, environmental groups submitted a petition requesting that wolverines be protected under the ESA.[15] For eight years the FWS refused to respond to the petition, and thus refused to enforce the ESA. In 2008, the environmental groups sued, and in 2009 the parties agreed to a settlement in which the FWS would study the issue and release a finding on wolverine listing by 2010.[16] They released findings in December, 2010, which revealed that wolverines in the lower 48 states “constituted a distinct population segment that warrant[s] listing under the ESA.”[17]

In early 2013, FWS issued their proposed listing rule for wolverines.[18] It leaned on climate models which showed that the wolverines’ habitat in the contiguous United States is at a high risk of destruction due to climate change.[19] Because of wolverines’ low breeding rates and their dependence on snow for denning, shrinking snowpack will directly impact their survival.[20]

All signs pointed to the FWS listing the wolverine as a protected species. That is, until the public comment window for the proposed rule opened. States including Montana, Idaho, and Wyoming pushed back against the data the FWS used, questioning the validity of the climate modeling in their analysis in particular.[21] Industry groups backing snowmobiling and the energy lobby also resisted the potential relisting of the wolverine.[22]

After the public comment period, the FWS decided at the eleventh hour to change course and withdraw their proposed rule to list the wolverine.[23] Two months after the Withdrawal, two dozen conservation and wildlife advocacy groups filed suit.[24]

Judge Christensen’s Decision

Judge Christensen held that many of the FWS’ decisions regarding the withdrawal of the proposed rule to be “arbitrary and capricious.”[25] Christensen noted that the FWS decision to set aside climate modeling studies in favor of withdrawing the proposed rule were not motivated by science or evidence, but rather by the Western states’ need for “freedom from perceived federal oversight, maintaining the public’s right to trap.”[26] Judge Christensen granted Plaintiffs’ motion for summary judgment in part, and remanded to FWS to revisit the decision to withdraw the proposed rule to list wolverines as threatened species under the ESA.[27]

Judge Christensen ends his decision with the following commentary: 

“[T]he Service’s decision against listing the wolverine as threatened under the ESA is arbitrary and capricious. No greater level of certainty is needed to see the writing on the wall for this snow-dependent species standing squarely in the path of global climate change […] if there is one thing required of the Service under the ESA, it is to take action at the earliest possible, defensible point in time to protect against the loss of biodiversity within our reach as a nation. For the wolverine, that time is now.”[28]

Even after Judge Christensen’s rebuke, and in the face of clear evidence showing listing as the right decision, the FWS came out on October 8, 2020 with a decision to decline protection for wolverines.[29]

Conclusion

The FWS’ decision to deny protection under the ESA for the wolverine was misguided. The ESA was passed with the intent to protect species that are at risk of extinction, in an effort to preserve the rich biodiversity of this nation. Decisions informed by industry and state political influence, and not by cutting edge climate science, fly in the face of the ESA and its goals. 

In our rapidly warming climate, more and more species will need protection from the impacts of climate change. Just because climate change is a politically sensitive subject with some does not mean it can or should be set aside when making critical determinations about species and habitat listings for protection by the ESA. The government needs to do a better job of educating itself and the American public on the realities and very clear dangers and consequences of climate change, so that we can work together to find creative and effective solutions and protections for threatened and endangered species across the country. 

The ESA is incredibly effective at protecting listed species.[30] It can and should be used as a tool in our fight against species extinction in the wake of climate change. One suggestion is to use the ESA to protect ecosystems, instead of just protecting species.[31] Not only is this solution clearly supported by the language of the ESA, it gets to the heart of the overarching threat to species: shrinking and rapidly changing habitats.[32]

Earthjustice and other environmental organizations have promised to continue this battle until wolverines are protected.[33]We can only hope that protections for wolverines and other threatened species come before it’s too late.

Earthjustice and other environmental organizations have promised to continue this battle until wolverines are protected.[33]We can only hope that protections for wolverines and other threatened species come before it’s too late.

*Sydney Hofferth is a Junior Editor with MJEAL. They grew up in South Bend, IN, and studied political science and economics at Indiana University – Bloomington. They can be reached at sydhoffe@umich.edu.


[1]Robert Lewis and Jennifer Hodson, Native American Wolverine Legends, Devil Bear Journal (Dec. 30, 2011), https://devilbearjournal.blogspot.com/2011/12/wolverines-and-folklore.html.

 (https://devilbearjournal.blogspot.com/2011/12/wolverines-and-folklore.html)

[2] Press Release, Earthjustice, Conservationists Seek Wolverine Prot. (Jan. 16, 2020), https://earthjustice.org/news/press/2020/conservationists-seek-wolverine-protection.

[3]Catrin Einhorn, Wolverines Don’t Require Protection, U.S. Officials Rule, N.Y. Times (Oct. 8, 2020), https://www.nytimes.com/2020/10/08/climate/wolverines-no-federal-protection.html.

[4]Def. of Wildlife v. Jewell, 176 F. Supp. 3d 975, 1000 (2016).

[5] Summary of the Endangered Species Act, EPA (Jul. 23, 2020), https://www.epa.gov/laws-regulations/summary-endangered-species-act.

[6] Id.

[7]2006 Ninth Circuit Environmental Review: Case Summaries, 37 Envtl. L. 671, 758 (2007). 

[8] Id. at 759.

[9] 6 Admin. Law § 51.03 (LEXIS 2020) https://plus.lexis.com/api/permalink/f68dba9b-7405-4475-8aaa-896cdbb58de3/?context=153067.

[10]Kelly Kunsch, Standard of Review (State and Federal): A Primer, 18 Seattle U. L. Rev. 12, 35-36 (1994), https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1436&context=sulr.

[11]Press Release, Earthjustice, Wildlife Advocates Plan to Challenge Decision Not to Protect Wolverines (Oct. 8, 2020), https://earthjustice.org/news/press/2020/wildlife-advocates-plan-challenge-to-decision-not-to-protect-wolverines.

[12]Id. 

[13]Wolverine, FWS: Endangered Species (Oct. 19, 2020), https://www.fws.gov/mountain-prairie/es/wolverine.php.

[14] Distribution, The Wolverine Found. (2020), http://wolverinefoundation.org/distribution. 

[15]Def. of Wildlife v. Jewell, 176 F. Supp. 3d 975, 981 (2016).

[16]Id.

[17]Id.

[18]Id. at 982.

[19]Id. at 982.

[20]Id. at 980-981, 985.

[21]Def. of Wildlife v. Jewell, 176 F. Supp. 3d 975 (2016).

[22]Id.

[23]Id. at 994.

[24]Id. at 996. 

[25]Id. at 1011.

[26] Id. at 1002.

[27] Id. at 1011-1012. 

[28]Id. at 1011.

[29]Catrin Einhorn, Wolverines Don’t Require Protection, U.S. Officials Rule, N.Y. Times (Oct. 8, 2020), https://www.nytimes.com/2020/10/08/climate/wolverines-no-federal-protection.html.

[30] Andrew J. N. D. Coffey, Note, Feeling the Heat: The Endangered Species Act and Climate Change, 36 Ga. St. U.L.Rev. 437, 437 (2020).

[31] Id. at 458.

[32] Id.

[33] Press Release, Earthjustice, Wildlife Advocates Plan Challenge to Decision Not to Protect Wolverines (Oct. 8, 2020), https://earthjustice.org/news/press/2020/wildlife-advocates-plan-challenge-to-decision-not-to-protect-wolverines.

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