Consider the Wolverine: And When You Do, Consider Climate Change

Katie Stewart

 

 

 

 

 

 

 

Montana Federal District Court Rejects Decision to Not List the Wolverine as Endangered

by Katie Stewart, Administrative Editor

There are only about 300 wolverines left in lower 48 states.[i] These fierce “mountain devils” depend heavily on mountain snowpack to build their dens, where they birth and raise their young.[ii] Climate change has reduced the Rocky Mountain snowpack in recent years, leading biologists to predict that the wolverines may soon disappear from their current habitat in Idaho, Montana, and Wyoming.[iii]  The clear logic of this threat helped persuade the U.S. District Court of Montana that the Fish and Wildlife Service had not met its obligations under the Endangered Species Act in Defenders of Wildlife v. Jewell, 46 ELR 20070 (D. Mont., April 4, 2016).

Despite such warnings, the U.S. Fish and Wildlife Service (FWS) declined to list wolverines as a threatened or endangered species.[iv] Section 4 of the Endangered Species Act (ESA) defines the criteria FWS should consider when making these determinations, including threats to species’ habitat, as well as a catchall category  of “other natural or manmade factors affecting its continued existence.”[v] Significantly, the ESA requires FWS to consider these threats based on the “best scientific and commercial data available.”[vi] FWS issued a proposal to list the wolverine in February of 2013[vii], but unexpectedly withdrew the proposal in August of 2014, finding that climate change and projected spring snowpack losses would not impact the wolverine’s reproduction levels.[viii] They also concluded that small population and low genetic diversity would not independently threaten the specie’s viability, and similarly disregarded the effects of trapping, winter recreation, and habitat alteration.[ix]

U.S. District Court Judge Dana Christensen disagreed.[x] On April 4, 2016, she held that FWS’s decision against listing the wolverine was arbitrary and capricious. Judges are required to be highly deferential to federal agency decisions[xi], so this opinion is a stinging rebuke, essentially holding that the FWS failed to offer a rational connection between the facts and their decision.[xii] Specifically, FWS unlawfully ignored the best available science when it dismissed the threat to the wolverine posed by climate change, small population size, and genetic isolation.[xiii]

FWS argued that they could not determine with certainty whether climate change would impact wolverine reproductive denning because snowpack predictions were too coarse and it was unclear how the wolverine would react to such changes.[xiv] Judge Christensen dismissed this line of reasoning as FWS pointed to uncertainties in the cited studies, but failed to point to any better scientific research.  The “best scientific data available” standard “does not require that the [Service] act only when it can justify its decision with absolute confidence,” wrote Judge Christensen, quoting language from a 9th Circuit decision.[xv] Put another way, the FWS “cannot demand a greater level of scientific certainly than has been achieved in the field to date,” and “the ESA accepts agency decisions in the face of uncertainty.”[xvi] By ignoring the existing climate science and wolverine research, and failing to offer different studies that would bolster their doubts, FWS acted arbitrarily and capriciously in their decision to not list the wolverine.

The court also acknowledged the elephant in the room, the “immense political pressure that was brought to bear on this issue, particularly by a handful of western states.” [xvii] Idaho, Montana, and Wyoming, along with the petroleum industry and snowmobile groups, opposed listing the wolverine. Judge Christensen suggested this was the only possible explanation for the FWS reversal only 18 months after the 2013 Proposed Rule, a rule that FWS itself determined was warranted by the best available science.[xviii]

This decision does not make the wolverine a threatened or endangered species. Judge Christensen could do no more than order FWS to reconsider their decision in light of the threats of climate change, and in light of the independent threat posed by population size and genetic diversity.[xix] It does, however, advance the use of climate-related science in statutorily mandated species management. The 2008 listing of the polar bear is likely the most prominent listing based primarily on climate change,[xx] but we may see many more after Defenders of Wildlife v. Jewell.

Whether these listing decisions will lead to greater regulation of the causes of climate change is uncertain. FWS explicitly linked greenhouse gasses (GHGs) to climate change in the polar bear listing,[xxi] but the listing had no effect on regulation of GHGs.[xxii] Although the ESA forbids “taking” an endangered species,[xxiii] FWS appears to have adopted the Scalia assertion that it lacks authority to regulate unintentional takings, an approach he put forward in dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.[xxiv] The DC Circuit upheld the FWS approach, ironically in litigation where FWS defended listing the polar bear.[xxv] If FWS eventually lists the wolverine as threatened or endangered, it will likely limit protection to takings that do not include contributions to climate change.

Defenders of Wildlife v. Jewell affirmed the need to consider the best available science, including politically-charged climate research, when listing threatened or endangered species. It also reignited the debate on whether the ESA could be used to regulate climate change. The current legal and political landscape suggests that it would be an uphill battle, but forcing FWS to acknowledge that climate change threatens habitats is a step in the right direction.

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[i] Jim Robbins, Judge Prods Wildlife Service on Protection for Wolverines, N. Y. Times (April 7, 2016),

http://www.nytimes.com/2016/04/08/science/wolverines-endangered-fish-and-wildlife-service-montana.html?_r=0.

[ii] Id.

[iii] See Kevin S. McKelvey et al., Kevin S. McKelvey et al., Climate Change Predicted To Shift Wolverine Distributions, Connectivity, And Dispersal Corridors, 21 Ecological Applications 8, 2882 (2011).

[iv] 79 Fed. Reg. 47522 (Aug. 13, 2014).

[v] Endangered Species Act, 16 U.S.C. §1533(a)(1).

[vi] Id. § 1533(b)(1)(A).

[vii] 78 Fed. Reg. 7864 (Feb. 4, 2013).

[viii] 79 Fed. Reg. 47522.

[ix] Id.

[x] Defenders of Wildlife v. Jewell, 46 ELR 20070 (D. Mont., April 4, 2016).

[xi] See Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

[xii] Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983) (explaining “the agency nevertheless must examine the relevant data and articulate a satisfactory explanation for its action” including a “rational connection between facts and judgment . . . to pass muster under the ‘arbitrary and capricious’ standard.”)

[xiii] Jewell, at 56.

[xiv] Id. at 58.

[xv] Id. at 63-64 (quoting Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1164 (9th Cir. 2010)).

[xvi] Jewell, at 63.

[xvii] Id. at 56.

[xviii] Id.

[xix] Id. at 74.

[xx] See 73 Fed. Reg. 28212 (May 15, 2008) (listing the polar bear as threatened); see also 79 Fed. Reg. 67356 (Nov. 13, 2014) (listing 20 species of coral as threatened).

[xxi] 73 Fed. Reg. 28245 (“the [Intergovernmental Panel on Climate Change (IPCC)] has concluded that (1) most of the observed increase in globally-averaged temperatures since the mid 20th century is very likely due to the observed increase in anthropogenic GHG concentrations; and (2) it is likely there had been significant anthropogenic warming over the past 50 years averaged over each continent . . .”).

[xxii] Michael C. Blumm and Kya B. Marienfeld, ENDANGERED SPECIES ACT LISTINGS AND CLIMATE CHANGE: AVOIDING THE ELEPHANT IN THE ROOM, 20 Animal L. 277, 306 (2014).

[xxiii] 16 U.S.C. § 1538(a)(1)(B).

[xxiv] Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 718 (Scalia, J., dissenting) (“It is obvious that ‘take’ in this sense – a term of art deeply embedded in the statutory and common law concerning wildlife – describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals).”).

[xxv] In re Polar Bear Endangered Species Act Listing & § 4(d) Rule Litig., 748 F. Supp. 2d 19, 20-21 (D.D.C. 2010); see generally, Blumm and Marienfeld, supra note 15.

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