Carter Ostrowski, Associate Member, University of Cincinnati Law Review
On November 3, 2020, the United States Fish and Wildlife Service (the “FWS”) issued a final rule to delist the gray wolf from the List of Endangered and Threatened Wildlife (the “List”) effective January 4, 2021. The November 3rd Rule (the “Rule”) is the newest in a string of failed attempts to delist the gray wolf. Over the last two decades, the FWS has issued six different rules to delist the gray wolf that were later vacated by the courts. Unfortunately for the gray wolf, a set of regulations that implement the Endangered Species Act (the “ESA”) were modified in 2019 in an attempt to lower the barriers that prevent a species from being prematurely delisted. Nevertheless, a coalition of environmentalist organizations (the “Coalition”) gave notice of suit to the FWS that threatened litigation if the Rule was not withdrawn in 60-days’ time. This article analyzes the notice of suit against the FWS and the likelihood of success for the lawsuit that may follow. Part II reviews the purpose and structure of the ESA. Part III breaks down the history of the gray wolf’s statutory protections. Part IV analyzes the justifications for the Rule and the claims of the notice of suit. Part V discusses the likelihood of success of the potential litigation. Finally, Part VI emphasizes the shortcomings of the Rule and the legal grounds upon which it should be vacated.
II. The Endangered Species Act of 1973
The ESA was signed into law by President Richard M. Nixon on December 28, 1973 to prevent the extinction of and bolster the recovery efforts of endangered and threatened plant and animal species. The ESA defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment [‘DPS’] of any species of vertebrate fish or wildlife which interbreeds when mature.” An endangered species is one that “is in danger of extinction throughout all or a significant portion of its range” whereas a threatened species is one that “is likely to become an endangered species within the foreseeable future.”
For a terrestrial or non-ocean going species like the gray wolf to be considered threatened or endangered, it must first be added to the List. When determining whether or not to add a species to the List, the FWS evaluates the following five factors: “(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.” A species that does make it onto the List is given sweeping protections. These protections include heavy fines and imprisonment for any person who harasses, harms, shoots, wounds, traps, kills, captures, collects, or attempts to engage in any such conduct with a threatened or endangered species. Further, the ESA grants the Secretary the power to designate the habitat of a listed species as a critical habitat, protecting the habitat itself from harm.
III. The Listing and Delisting of the Gray Wolf
It is estimated that hundreds of thousands of gray wolves once inhabited all of what are now the lower forty-eight United States. However, as humans settled more of the Continental US, gray wolves began to lose their habitats and started to be hunted and trapped. By 1967, there were to less than one thousand gray wolves in the United States. In response to the devasted gray wolf population, three sub-species known as the Eastern timber wolf, the Northern Rocky Mountain (“NRM”) wolf, and the Mexican wolf were classified as an endangered under the precursor to the ESA. These sub-species were then listed under the ESA following its adoption in 1973. In 1978, these sub-species were re-organized as a species to protect the entire gray wolf population in the lower forty-eight states. There were two exceptions to this grouping: the first was the Minnesota gray wolf, which was classified as threatened, and the second was the Mexican wolf, which remained as an endangered sub-species.
In the years after the gray wolf’s 1978 re-listing, there have been various attempts to break off sub-species from the listed entity and either downgrade that sub-species to threatened or remove it from the list entirely. Even though many of these attempts have been approved by the FWS, all but one of the delisting rules have been completely vacated by the courts. For example, in 2003 the FWS issued a rule that broke the species into Eastern, Western, and Southwestern sub-species and downgraded two of the sub-species to threatened status; however, the rule was rejected by two district courts for evaluating only a small portion of the population within the entire range and for lumping two segments together without ascertaining whether a wolf population even existed in one of them. In 2012, the FWS issued another rule that classified and delisted a sub-species called the Western Great Lakes wolves. This rule was also vacated by a district court and confirmed by the D.C. Circuit. The court found that the FWS does have the power to classify a sub-species from a currently listed entity and simultaneously de-list it, but rejected the rule because the FWS did not fully address the impact that the extraction would have on the remaining wolves in the already-listed species.
The only rule issued by the FWS aimed at delisting or downgrading the gray wolf that remains in effect today is a 2009 rule that carved out and delisted the Northern Rocky Mountain wolves as a DPS. The rule was initially vacated by a district court because the rule maintained protections over wolves in Wyoming. The protections sustained over these wolves violated the definition of a DPS, as a listed DPS must either be fully protected or not listed at all. However, the 2009 rule was reissued by Congressional action as part of the Department of Defense and Full-Year Continuing Appropriations Act of 2011.
IV The November 3rd Rule and the Notice to Sue
The FWS published a new rule in the Federal Register on November 3, 2020. The Rule removed the entire gray wolf species from the List in the lower forty-eight states and Mexico except for the Mexican wolf. In justifying this this decision, the FWS relied on few main premises. First, the Rule states that the currently listed gray wolf entity does not meet the definition of a species because the entire species ceased to be represented after the NRM wolf was delisted in 2011. The FWS reinforces this reasoning by citing a change in 2019 to the regulations that guide the implementation of the ESA which state that a listed entity must be delisted if it does not meet the ESA’s definition of a species. Second, the Rule rejects the idea of breaking up the listed entity into multiple DPSs because the gray wolf is not established enough in distinct regions to meet the ESA’s definition of a DPS. Lastly, the Rule defines “range” as the area occupied by the species at the time they make the delisting determination. In doing so, the ESA claims numerous small colonies of wolves dispersed throughout different areas are not considered to substantively contribute to the wolf’s viability.
Naturally, the Coalition opposing the Rule states that the FWS failed to properly evaluate a number of different factors. First, the Coalition claims that FWS failed to consider the entire population in evaluating the currently listed entity and emphasizes that ESA requires the FWS to “look at the whole picture of the listed species, not just a segment of it.” Second, the Coalition states that the FWS failed to provide for a sustainable wolf population after its delisting and cites to states like Utah and Washington that either require officials to capture and kill wolves that enter the state and or simply have no plans for wolf management. Next, the Coalition claims that the FWS failed to consider lost historical habitat and argues that even though the term “range” does not mean “historical range,” the 95% loss of historical range cannot be brushed off by the FWS. Fourth, the Coalition criticizes the FWS for irrationally ignoring the status of grey wolves within its current range by shining a light on new, smaller populations of wolves that have appeared in states like New York and Vermont and could greatly benefit from the species’ current protections. Finally, the Coalition states that the Rule failed to use the best available science in reaching its decision by using out-of-date recovery plans, oversimplifying the genetic structure of remaining wolf populations, and failing to provide information on suitable habitats in regions such as Colorado and the Northeast U.S.
It is likely that a lawsuit brought by the Coalition would be successful in vacating the Rule. One of the main premises used by the FWS to delist the gray wolf is the listed entity’s lack of congruity with the ESA’s definition of species. However, delisting for such a reason undermines the entire purpose of the ESA. The ESA is designed to pull species, sub-species, and DPS’s back from the brink of extinction, even if the main population segment of a DPS is healthy. Courts have historically looked to this underlying purpose and have taken extreme measures to protect species on the List. A species should not lose its broad protections on a few mere technicalities, especially if the FWS has not exerted a sufficient effort to either define a proper classification for the species or ensure that there are adequate protections in place for after the species is delisted. Further, if the FWS’s argument were to succeed, then any entity that has been listed broadly at the species level would be completely destroyed if a single DPS had recovered to a point where it no longer qualified as threatened or endangered. Such an interpretation is overly harsh on the listed entity and completely undermines the ultimate goal of the ESA, which is to recover a species throughout all or a significant portion of its range, not just a distinct segment.
The Rule also ignores the main purpose of the ESA by failing to account for the entire species and failing to ensure the lower forty-eight states have protective measures in place to protect the gray wolf. First, as noted by the Coalition, the FWS justifies the Rule by focusing on the successful population recovery of a few significant territories. However, if the significant territories were to shrink, their connection to the unacknowledged newer potential populations may severely hinder their chances at recovery in new areas. Second, Factor D of the delisting factors, which requires adequate protective mechanisms to be in place by the states, either do not exist or are set to harm the species. Even though the Rule cites a few states with existing protections, the Coalition points out that many of these are in a state of flux. Ultimately, even though complete recovery of a species to its pre-human population size is impossible, the FWS must take the minimum steps required to protect species on the brink of extinction. Because the Rule fails to do so, it would likely be vacated in a court of law.
In conclusion, the FWS failed to adequately assess the current state of the listed gray wolf entity when it issued the Rule to delist it. Because the FWS’s use of the definition of species in relation to the Rule undermines the core purpose of the ESA, a lawsuit brought to vacate the Rule is likely to succeed.
 Endangered and Threatened Wildlife and Plants, 85 Fed. Reg. 69,778 (Nov. 3, 2020) (to be codified at 50 C.F.R. pt. 17).
 Id. at 69,781.
 Sheikh, Cong. Research Serv., IF10944, Final Rules Changing Endangered Species Act Regulations 1 (2019).
 Letter from Kristen L. Boyles, Attorney, Def. Wildlife, to David Bernhardt, Sec’y, Interior (Nov. 5, 2020) https://www.biologicaldiversity.org/campaigns/gray_wolves/pdfs/Gray-Wolf-60-Day-Notice.pdf.
 Id. At the time this article was published, the sixty-day notice had not yet expired and the FWS had not withdrawn the Rule.
 Endangered Species Act of 1973, 16 U.S.C. § 1532(16) (Westlaw current through Pub. L. No. P.L. 116-193).
 16 U.S.C. § 1532(6).
 Listing Species Under the ESA and Designating Critical Habitat, The United States Department of Justice, https://www.justice.gov/enrd/listing-species-and-critical-habitats (last visited Dec. 1, 2020).
 16 U.S.C. § 1533(a)(1).
 16 U.S.C. §§ 1540(a)-(b).
 16 U.S.C. §§ 1532(5).
 85 Fed. Reg. at 69,788.
 Letter from Kristen L. Boyles at 1.
 85 Fed. Reg. at 69,783.
 85 Fed. Reg. at 69,781.
 Def. of Wildlife v. Norton, 354 F. Supp. 2d 1156, 1168-1169 (D. Or. 2005); Nat’l Wildlife Fed’n v. Norton, 386 F. Supp. 2d 553, 564-565 (D. Vt. 2005)).
 Humane Soc’y of United States v. Zinke, 865 F.3d 585, 589 (D.C. Cir. 2017).
 Zinke, 865 F.3d at 615.
 Zinke, 865 F.3d at 600.
 85 Fed. Reg. at 69,781.
 85 Fed. Reg. at 69,780-781.
 Def. of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1228 (D. Mont. 2010).
 85 Fed. Reg. at 69,781.
 85 Fed. Reg. at 69,778.
 85 Fed. Reg. at 69,783-784.
 85 Fed. Reg. at 69,879.
 85 Fed. Reg. at 69,786.
 Letter from Kristen L. Boyles at 2.
 Id. at 3-4.
 Id. at 4-6.
 Id. at 6-7.
 Id. at 8-11.
 Id. at 11-13.
 Humane Soc. of United States v. Kempthorne, 579 F. Supp. 2d 7, 11 (D.D.C. 2008).
 Brandon M. Middleton, Restoring Tradition: The Inapplicability of Tva v. Hill’s Endangered Species Act Injunctive Relief Standard to Preliminary Injunctive Relief of Non-Federal Actors, 17 Mo. Envtl. L. & Pol’y Rev. 318, 327-329 (2010), quoting TVA v. Hill, 437 U.S. 153, 172, 184, 187 (1978) (“It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million . . . The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost . . . The plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as ‘incalculable.”’)
 16 U.S.C. § 1533(a)(1).