Yesterday afternoon, Judge Donald Molloy of the Federal District court for Montana issued a preliminary injunction reinstating Endangered Species Act protections for grey wolves in Montana, Idaho, and Wyoming. This is very good news for the wolves. Although a preliminary injunction will only protect the wolves until the lawsuit is resolved, a judge will only issue one if it appears likely that the party requesting the lawsuit is going to win at trial.
A friend of mine emailed me a copy of the decision. It’s forty pages long, and very little of it is kind to the Fish and Wildlife service. It certainly leaves no doubt whatsoever as to which party the judge believes is likely to ultimately prevail when the trial is concluded. After examining the claims made by each party, Judge Malloy concluded that it appears that the FWS arbitrarily and capriciously reversed several of its own prior conclusions and decisions in order to justify their decision to delist the affected populations.
The timing for this decision really couldn’t be better. Without the preliminary injunction, all three states would have been able to go ahead with plans for wolf hunts this fall. Montana and Wyoming hadn’t yet published their hunting guidelines and quotas, but had they been anything like the ones proposed in Idaho, the consequences for the species could have been severe. (I can’t honestly say that Idaho’s guidelines would have decimated their wolf population, but that’s only because “decimate” implies that the mortality would only be 10%. They were planning on shooting more than a third of the wolves in the state.) The decision also came on the same day that fish and wildlife officials in Washington state confirmed the presence of at least a small group of wolves in their state for the first time since the 1930s.
The plaintiffs (a group of environmental groups) made argued that the Fish and Wildlife Service should not have delisted the grey wolf populations for several different reasons. Let’s take a quick look at at a couple of these reasons, why they’re important, and how the court viewed them.
The plaintiffs argued that the wolves should not have been delisted because the government had not yet demonstrated that there was an exchange of genetic material throughout the affected populations. In particular, they noted that a 2007 study commissioned by FWS found that there was no evidence that there was gene flow between the Yellowstone wolf population and any of the other wolf populations in the area. As they pointed out, the 1994 Environmental Impact Statement that was conducted before the wolves were re-introduced specifically mentioned the establishment of a metapopulation as a necessary condition for delisting the wolves. A metapopulation is defined as a set of subpopulations that are exchanging genes with each other, so it’s clear that a metapopulation has not yet been established.
This might not be the easiest concept to explain, but it has real implications for the future of these wolf populations. Basically, it comes down to this: if one of the populations of these wolves is genetically isolated from the others, it is almost certainly going to experience a drop in genetic diversity as time goes on. The genetic diversity of a population is one of the things that helps a population respond to sudden changes in its environment – basically, it means that there’s at least a chance that some members of the population will be able to resist a new disease, or respond to other forms of change, making it less likely that the whole population will be wiped out by a single problem. Populations that lack genetic diversity are more vulnerable over the long run.
In this case, the populations in Idaho, Montana, and Wyoming might be large enough to sustain the losses that would come from delisting on their own, and they are genetically linked to Canadian populations, which means that they can maintain their own genetic diversity. However, until these populations become large and stable enough to forge genetic links with the more isolated Yellowstone area population, the Yellowstone population will remain at increased risk. This means that lifting the protections on the populations outside Yellowstone will increase the risk to the population in inside Yellowstone.
The FWS argument was essentially twofold. First, they argued that the scientific study that they commissioned was flawed because it didn’t sample every wolf in Yellowstone, and therefore couldn’t demonstrate the absence of a metapopulation. Second, they argued that they didn’t need to follow their own original guidelines in order to delist the populations. The judge didn’t buy either argument:
The Fish & Wildlife Service’s speculation about genetic exchange is not convincing. The VonHoldt Study did not collect DNA samples from every wolf in Yellowstone National Park. This fact, however, does not render the Study, or its findings, useless. There is no question about the adequacy of the Study’s sample size or its statistical significance. Nor does the Service contend the testing methods used in the Study were flawed. None of the wolves tested in the Study showed a genetic link to wolves in northwestern Montana or to wolves in central Idaho.
(decision, p. 20)
While the Service is entitled to change its recovery criteria, it must provide a “reasoned analysis” for doing so. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42 (1983). In this case, the Service has not sufficiently justified or explained its change of course. The obvious shift focuses exclusively on the wolves’ success in meeting the recovery criterion of 30 breeding pairs and 300 wolves. The genetic diversity requirement for viability is pushed to the back burner of consideration with no explanation of its precipitous drop in importance. The Service instead suggests the 30/300 criterion is the magic tipping point at which the wolves will no longer be endangered. Yet, in 1994, the Service expressly rejected this numerical criterion in favor of recovery criteria that required not only numerical abundance, but also genetic exchange.
The judge ruled that FWS decision to reject the scientific report that it had commissioned, and overturn without explanation its own original set of delisting criteria was arbitrary. To put it another way, the judge told the FWS that it needs to use the scientific information it collects appropriately when it manages populations.
The judge also pointed to several other areas where the federal government failed to act appropriately in this case, including the FWS’ decision to accept a management plan from Wyoming that was very, very similar to a management plan that they had previously rejected. The wolves aren’t out of danger yet, but at least for the moment they’ve been spared from the arbitrary acts of this administration through the intervention of the independent judiciary.