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Protection of Gray Wolves: Defenders of Wildlife v. U.S. Fish and Wildlife Service

Updated: Jun 27

Written by Echo Aloe, Fall 2021 Wildlife Law student under Carol Frampton at Michigan State University College of Law

The gray wolf (Canis lupus) has again taken center stage in the field of conservation law. With the renewed debate over whether gray wolves should remain protected under the Endangered Species Act (ESA), comes a necessary conversation regarding two principles of the North American Model of Wildlife Conservation (Model): killing wildlife for legitimate purposes and science as the proper tool for management. According to the Model, wildlife should only be killed for legitimate purposes.[1] Legitimate purposes include food, fur, self-defense, and protection of property, and at the heart of this principle are the ideas of fair chase and non-frivolous use of wildlife resources. [2] State game laws engage with these ideas by setting limits on when, where, and how many animals may be taken.

Regulation of wolves returned to the states in January 2020, after the U.S. Fish and Wildlife Services (FWS) removed gray wolves from the endangered species list.[3] The change in administrations has not upset the rule; the Biden administration “is sticking by the decision [of the Trump administration]. . . to lift protections for gray wolves.”[4] However, the Biden administration is concerned with how some states have decided to manage wolves through adoption of aggressive wolf hunting seasons.[5]

Removal prompted several states to hold wolf hunts in 2021. In Wisconsin, the state planned to allow hunters to take 119 wolves during the month of February, however, three days into the season, hunters had shot and trapped 218 wolves.[6] Notably, when accounting for illegal poaching, it is estimated that one third of the total wolf population in Wisconsin was consequently taken in a single season.[7] In other states, the proposed wolf hunting regulations allow methods that resemble the aggressive eradication policies from a century earlier.[8] In fact, one member of Montana’s Fish and Wildlife Commission raised concerns that Montana’s new wolf hunting regulations, including the use of neck snares, threatened principles of fair chase.[9]

A main concern raised by these policies and results is whether all populations of gray wolves are robust enough to withstand the impact that wolf hunts may have on the species. According to the North American Model of Wildlife Conservation, “the best science available [should be] used to make critical decisions on natural resource management,”[10] which is mirrored by the ESA. Notably, when it comes to wolves, it appears that various stakeholders cannot agree on which science should be the basis for wolf regulation.

The 2020 delisting rule was challenged in court as being arbitrary and capricious.[11] Petitioners, Defenders of Wildlife and other non-profit organizations, asked the court to vacate the rule and return, at least some, gray wolves to the endangered species list.[12] Oral arguments were heard in the Northern District Court of California in November of last year, but Judge Jeffery White did not issue a ruling from the bench, and he did not give any signs on which way he was leaning.[13]

Map of regional assessment units used in the 2008-2011 national wolf strategy process.[14]

The crux of Petitioners’ argument was that FWS violated the ESA by failing to rely on the best available science in making its decision to delist all gray wolves. The complaint alleges that FWS violated the ESA by failing to “analyze the conservation status of the full listed species.”[15] The ESA requires that a delisting decision apply the “full, five factor threats analysis” to the species to prevent “FWS from restricting its analysis of extinction risk based on arterially confided considerations that systematically under-protect listed…species.”[16] Rather, Petitioners alleged that for the 2020 delisting rule, FWS relied on wolves in the Great Lakes states and the Northern Rockies to analyze risk factors for all wolves in the lower 48 states.[17]

The ESA allows FWS to list, or delist, distinct population segments (DPS) of a species; this allows a subsect to be treated differently than the whole species.[18] In 2008, FWS justified delisting only the Northern Rockies wolves by determining that the Pacific Coast wolves were sufficiently distinct.[19]Yet, according to the complaint, FWS’s 2020 rule “arbitrarily and unlawfully grafted Pacific Coast wolves onto [this] already delisted segment of [Northern Rockies] wolves for the purpose of its analysis,” despite the fact that the best available science indicates that these wolves represent “a ‘coastal ecotype’ that is ‘genetically and morphologically distinct, and display[s] distinct habitat and prey preference, despite relatively close proximity’ to other wolves.”[20] The agency provided no rationale for this reversal in the 2020 delisting rule.[21] Rather, FWS attempted to make these wolves “invisible for the purposes of its ESA delisting analysis” in 2019, and in so doing, it failed to consider specific threats to the Pacific Coast wolves.[22]

Finally, petitioners alleged that FWS’s 2020 delisting rule was contrary to the ESA because the agency dismissed the importance of recovery in a significant portion of the gray wolf’s range.[23] The final rule stated the FWS “assessed ‘significance’ based on whether the portion of the range contributed meaningfully to the resiliency, redundancy, or representation of the gray wolf entity being evaluated without prescribing a specific threshold.”[24] “Significance” was interpreted using any reasonable determination.[25] Providing no further information, or an attempt to interpret “significant portion,” the complaint alleged that the public and court have no means to evaluate FWS’s approach, which provides ground for a remand.[26]

In sum, petitioners concluded that the 2020 delisting rule was contrary to the best available science, making it arbitrary and capricious and that it should be vacated under the Administrative Procedure Act.[27]

As of February 10, 2022, the U.S. District Court for the Northern District of California vacated and remanded the FWS’s rule that delisted certain gray wolf “entities,” holding that the rule violated the ESA and the APA in a variety of ways.[28] The Court concluded that FWS “could not delist an entity solely because it determined the listed entity no longer met the definition of a species under the ESA and that FWS must instead apply the ESA’s explicit standards for delisting.”[29] The court determined that FWS had “not offered a reasonable construction of the phrase significant portion of its range,” which is provided in the ESA’s definitions of “endangered species” and “threatened species.” [30]


[1] U.S. Fish and Wildlife Services, North American Model of Wildlife Conservation (Sept. 19, 2018). [2] Boone and Crockett Club, North American Model of Wildlife Conservation (last visited Nov. 5, 2021) www.boone-crockett.org/north-american-model-wildlife-conservation. [3] Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife, 85 Fed. Reg. 69, 778 (Nov. 3, 2020). [4] Biden Backs the End of Protections for Wolves. But Worries About Hunting Grows, NPR (Aug. 20, 2021) www.npr.org/2021/08/20/1029854797/biden-gray-wolves-endangered-species-protections-hunting. [5] Id. [6] Douglas Main, A Third of Wisconsin’s Wolves Killed after Losing Protection This Year, Study Says National Geographic (July 9, 2021). [7] Id. [8] Nick Mott, Montana Adopts ‘Aggressive’ Wolf Hunting Regulations, Montana Public Radio (Aug. 24, 2021). [9] Id. [10] Boone and Crockett Club, North American Model of Wildlife Conservation (last visited Nov. 5, 2021) www.boone-crockett.org/north-american-model-wildlife-conservation. [11] Defenders of Wildlife, et al v. U.S. Fish and Wildlife Services, No. 4:21-cv-00344-jsw (N.D. Cal. July 16, 2021) [hereinafter Defenders of Wildlife]. [12] Id. at 47-49. [13] John Myers, Federal Wolf Lawsuit Gets Hearing in California, Brainerd Dispatch: Northern Outdoors (Nov. 12, 2021, 3:58 PM). [14] Carlos Carroll et al., Wolf Delisting Challenges Demonstrate Need for an Improved Framework for Conserving Intraspecific Variation Under the Endangered Species Act, 71 BioScience 1, 73-84, 74 (Jan. 2021) https://doi.org/10.1093/biosci/biaa125. [15] Defenders of Wildlife, supra note 11, at 10. [16] Id. [17] Id. at 11. (The complaint points out that FWS using these two populations of wolves to make general delisting rules is not new; a rule based off this limited scope was struck down in 2011 by the D.C. Circuit Court. In the 2013 rule, which also attempted to use the Great Lakes states and Northern Rockies wolves to delist wolves outside these areas was struck down in Humane Soc’y of the U.S. v. Zinke, 865 F.3d 585, 602 (D.C. Cir. 2017), with the court noting that FWS could not use a backdoor route to the de facto delisting of a protected species and that the agency could not “delist an already-protected species by balkanization.”). [18] See Defenders of Wildlife, at 3 (citing Humane Soc’y of the U.S. v. Zinke, 865 F.3d 585, 598 (D.C. Cir. 2017) (“This reflects ‘Congress’s intent to target the Act’s provisions where needed, rather than to require the woodenly undeferential treatment of all members of a taxonomic species regardless of how their actual status and condition might change over time.’”)). [19] Id. at 14. [20] Id. at 13. [21] Id. Making it an arbitrary and capricious decision because when an agency changes positions it is required to provide a reasoned explanation for disregarding facts and circumstances that supported the prior policy. [22] Id. at 18. [23] Id. at 19. [24] Id. at 21. [25] Id. [26] Id. at 22. [27] Id. at 47. [28] Erin H. Ward, U.S. District Court Vacates Gray Wolf Delisting Rule, Congressional Research Service Legal Sidebar (Feb. 18, 2022). [29] Id. [30] Id.